i-.eU'I. 

MONTGOMERY    Straet, 

,-\S  VllAN'CISCO. 


GIFT  OF 

MISS    E^X. 


H&EK  TEBwaS 


THE 


LAND  OWNER'S  MANUAL, 


CONTAINING 


A     SUMMARY     OF 

STATUTE  REGULATIONS, 


NEW-YORK,    OHIO,  INDIANA,   ILLINOIS,  MICHIGAN, 
IOWA   ANJD  WISCONSIN, 


CONCERNING 


LAND    TITLES,    DEEDS,  MORTGAGES,    WILLS    OF    REAL   ESTATE,    DESCENTS,    LAND 

TAXES,    TAX    SALES,    REDEMPTIONS,    LIMITATIONS,  EXEMPTIONS, 

INTEREST   OF    MONEY    AND    USURT, 

WITH 

AN      APPENDIX, 

CONTAINING 

THE  CONSTITUTIONS  OF  THE  SAID  STATES. 


BY  BENJAMIN;.  R  UAXjL>.  :';:•.::  .' 

COUNSHfcVKl^M'j.  J  fit  '•        '  •  *    •  *'•  : 


AUBURN,   N.Y.: 
J.  C.  DERBY  &  CO.,   PUBLISHERS. 

BUFFALO : 

DERBY  &  HBWSON. 

CINCINNATI: 
DERBY,  BRADLEY  &  CO. 


Entered,    according   to  Act  of  Congress,   in   the   year   eighteen   hundred   and 
forty-seven,  by 

BENJAMIN.    F.   HALL, 

in    the    Clerk's    Office   of   the    District   Court  of  the   United   States   for   the 
Northern   District   of   New- York. 


PRESS  OP  JOHN  C.  MERRELL  &  CO., 
AUBURH,  N.  T. 


TESTIMONIALS. 


The  Publishers  beg  leave  to  submit  the  following  extracts  from  communications 
relating  to  the  Land  Owner's  Manual,  and  its  adaptation  to  the  exigencies  of  the 
times  and  the  wants  of  the  public  : 

FROM   EX.  GOV.  WILLIAM  H.  SEWARD. 

"  1  believe  your  work  will  be  extensively  useful,  and  think  I  cannot  be  mis- 
taken in  advising  its  publication  under  an  expectation  that  it  will  be  of  much 
service  to  land  owners  and  to  the  public." 

FROM  THE  HON.  ALFRED  CONKLING,  U.  S.  D.  C. 

"  1  cannot  doubt  that  an  accurate  summary  of  the  Statute  regulations  in  the 
-   tiort'mvi-st  of  the  Ohio,  concerning  the  execution,  attestation,  acknowledg- 
ment   and    recording  of    deed-,  wills  of  real  estate,   descents,  land  taxes  and 
redemptions,  is  a  desideratum,  and  would  be  found  highly  convenient  and  useful 
to  the  profession,  as  well  as  to  non-resident  land  owners." 

FROM  THE  HON.  MILLARD  FILLMORE. 

"  Such  a  work  is  wanted  not  only  by  the  legal  profession  of  this  State,  but  by 
many  business  men  having  commerce  or  dealings  in  the  States  noticed.  Such  a 
manual  would  furnish  just  the  information  which  persons  interested  in  western 
lands  desire.  It  would  also  be  valuable  in  each  of  the  several  States,  from  tho 
Statutes  of  which  the  compilation  is  made,  by  furnishing  to  citizens  of  each  a 
knowledge  of  the  laws  in  the  other  States." 

FROM  THE  HON.  FREEBORN  G.  JEWETT,  N.  Y.  S.  C. 

"  I  do  not  hesitate  to  express  my  opinion  that  a  publication  containing  an  accu- 
rate summary  of  the  Statute  regulations  in  Ohio,  Indiana,  Illinois,  Michigan  and 
Wisconsin,  concerning  conveyances,  wills,  land  taxes  and  redemptions,  cannot 
fail  to  be  highly  convenient  and  valuable,  as  well  to  the  legal  profession  as  to  men 
having  property  or  dealing  in  the  said  States." 


248126 


••••  «-•%/ 

«•*".:  s- 

16  TESTIMONIALS. 


FROM    THE    HON.    JOSEPH    L.    RICHARDSON,   FIRST  JUDGE   OF 
CAYUGA  COUNTY. 

*'  I  am  of  opinion  that  the  Land  Owner's  Manual  will  be  found  to  be  a  work  of 
prime  necessity.  I  have  through  a  long  life  of  judicial  experience  felt  the  want  of 
such  a  digest ;  and  I  think  you  will  lay  the  community  at  large  under  great  obliga- 
tions by  its  publication." 

FROM  S.  A.  GOODWIN,  ESQ.,  COUNSELLOR,  &c. 

"  Your  work  evinces  industry,  research  and  ability,  and  will  be  convenient  in  the 
hands  of  professional  gentlemen  and  others,  as  it  furnishes  a  ready  solution  to 
many  questions  continually  arising  with  thosej-interested  in  land  titles.  It  has 
moreover  many  points  of  interest  to  the  antiquarian  tastes  of  the  general  reader." 

FROM  THE  HON.  ABRAHAM  GRIDLEY,  N.  Y.  SENATE. 

"  I  am  satisfied  that  the  Land  Owner's  Manual  cannot  fail  to  be  of  vast  utility 
not  only  to  emigrants  but  to  every  person  interested  in  western  lands.  The  doc- 
umentary history  of  each  State  will  be  interesting  to  the  public  generally.  I  hope 
the  manuscript  may  be  put  to  press,  and  doubt  not  that  its  sale  will  be  rapid  and 
general.  I  recall  many  instances  of  perplexity  and  embarrassment  whilst  acting 
as  County  Clerk  some  twenty  years  ago,  concerning  the  execution,  attestation, 
and  recording  of  foreign  conveyances  which  such  a  book  would  have  obviated. 
I  would  advise  that  it  be  condensed  in  size  as  far  as  practical)!  •.  *n  that  it,  may  nor. 
be  so  voluminous  or  expensive  as  to  be  beyond  the  command  of  every  one  who 
peeds.h." 

FROM  THE  HON.  JOHN  PORTER. 

"  From  a  cursory  examination  of  the  sheets  of  your  work  I  find  evidence  of 
your  assiduity  in  collecting  the  necessaiy  materials  for  such  a  publication ;  and  of 
your  judgment  and  skill  in  arranging  them  in  a  form  convenient  and  useful  for 
reference.  Those  seeking  historical  information  upon  subjects  of  which  you  treat, 
and  others  interested  in  the  municipal  regulations  of  New-York  and  the  Western 
States,  so  far  as  relate  to  land  titles,  must  feel  under  obligations  to  you  for  tho 
ready  means  your  book  will  afford  of  ascertaining  those  rules  by  which  they  must 
be  governed  in  various  transactions  of  business,  as  well  as  for  the  appropriate  re- 
marks with  which  you  accompany  elucidate  and  apply  thorn." 

FROM  NELSON  BEARDSLEY,  ESQ.,  COUNSELLOR,  &c. 

"  Having  heretofore  experienced  inconvenience  from  the  want  of  information 
now  so  readily  obtained  from  your  "  Land  Owner's  Manual,"  I  can  more  fully  ap= 
predate  the  value  of  your  labors.  The  work  is  evidently  the  fruit  of  much  re. 


TESTIMONIALS.  17 

search,  and  cannot  fail  to  commend  itself  to  all  who  have  business  relations  with 
the  people  of  the  States,  of  whose  laws  and  statute  regulations  you  treat  in  so 
lucid  and  practical  a  manner." 

FROM  THE  HON.  GEORGE  RATHBUN. 

"  Your  work  I  have  no  doubt  will  be  found  a  convenient,  useful  and  valuable 
book,  not  only  to  non-resident  land  owners,  but  to  our  citizens  generally,  compri- 
sing as  it  does  much  useful  information  upon  a  great  variety  of  subjects." 

FROM  MICHAEL  S.  MYERS,  ESQ.,  COUNSELLOR,  &c. 

"  I  concur  in  the  opinions  expressed  in  favor  of  your  Land  Owner's  Manual. 
The  scope  and  matter  of  the  work  must  render  it  useful  to  the  profession,  and  in- 
structive to  the  general  reader. 

FROM  GEO.  W.  FITCH,  M.  D,  (IOWA.) 

"  If  you  can  present  the  subject  of  land  taxes  in  five  or  six  States  in  a  con- 
densed work,  so  that  it  can  be  readily  procured  by  the  people  at  large,  I  think 
you  will  confer  a  favor  upon  the  immense  number  of  persons  who  are  yearly  pur- 
chasing lands  at  the  west." 

FROM  JAMES  H.  BOSTWICK,  ESQ.,  MAGISTRATE  AND  SURVEYOR. 
"  A  guide  to  conveyancing  for  record  in  the  western  States  is  much  wanted  by 
-tnitos  in  New-York.     A  reliable  work  of  that  kind,  and  which  shall  contain 
the  regulations  concerning  taxes  and  the  redemption  of  forfeited  lands  would  sup- 
ply a  hiatus  in  tho  book  market,  and  be  of  much  service  to  the  public.     If  you  have 
rho  mtiti -rials  from  which  you  can  prepare  a  work  of  that  kind,  you  will  oblige  me, 
;i>  no  doubt  you  will  all  Justices  of  the  Peace,  Commissioners,  and  Clerks  of  coun- 
ties, by  so  doing. 

FROM  EBENEZER  B.  COBB,  ESQ.,  CLERK  OF  CAYUGA  COUNTY. 

"  I  know  of  no  book  so  much  wanted  bj  Clerks  of  Counties,  as  one  which  shall 
contain  exact  information  concerning  the  signing,  sealing,  attestation,  proof  and  ac- 
knowledgment and  certificate  of  authentication  of  deeds  and  mortgages,  executed 
in  New-York,  but  designed  for  record  in  other  States.  The  number  of  such  con- 
veyances annually  executed  and  brought  to  Commissioners  and  Clerks  of  Counties 
to  be  certified,  is  immense,  and  the  importance  of  a  work  containing  the  statute 
regulations  of  the  State  where  they  are  to  be  read  in  evidence,  or  recorded,  is 
commensurate  with  the  number.  I  was,  therefore,  much  gratified  to  learn  that  you 
were  engaged  in  preparing  a  book  containing  the  information  so  generally  wanted. 
As  such  a  work  can  hardly  fail  to  be  appreciated  and  purchased  by  a  large  propor- 
tion of  the  owners  of  western  land?,  residing  in  the  middle  and  eastern  States,  I 
hope  you  will  hasten  its  publication." 


18  TESTIMONIALS. 


FROM  THE  HON.  ERASTUS  D.  CULVER,  M.  C. 

"  The  work  you  propose  to  publish  will  have  great  value  to  non-resident  land- 
owners and  tax-payers,  as  well  as  to  the  profession.  If  executed  with  fidelity,  as 
no  doubt  it,  will  be,  if,  cannot  fail  of  a  favorable  consideration  by  the  public 
generally." 

FROM  THE   HON.   THOMAS  CORWIN,   U.  S.  SENATOR,  AND  THE 
HON.  R.  C.  WINTHROP,  M.  C. 

"  The  importance  of  a  Statute  Manual,  that  shall  embrace  precisely  that  kind 
of  information  which  the  immense  number  of  non-resident  land-owners  and  tax- 
payers in  the  north-western  States  desire,  respecting  their  titles  and  taxes,  cannot 
be  questioned.  We  therefore  concur  in  the  views  expressed  by  Mr.  Culver,  in 
his  communication  above." 


PREFACE.  19 


PREFACE. 


The  want  of  a  convenient  summary  of  such  of  the  statute  regulations 
in  the  States  northwest  of  the  Ohio  as  relate  to  the  execution,  attesta- 
tion, acknowledgment  and  recording  of  conveyances,  the  execution,  at- 
testation, probate  and  recording  of  wills  of  real  estate,  descents,  land 
taxes,  redemptions,  limitations,  exemptions,  and  the  interest  of  money, 
together  with  the  suggestions  of  friends  owning  land  at  the  west,  in- 
duced the  preparation  of  the  following  work.  In  consideration  of  the 
growing  importance  of  this  fertile  country,  and  its  eligibility  for  agricul- 
ture and  commerce,  immense  numbers  of  the  inhabitants  of  the  old 
States  have,  within  the  last  ten  years,  become  land  owners  and  tax 
payers  in  the  new,  and  being  non-residents  of  the  States  in  which 
their  possessions  were  situated,  have  experienced  much  difficulty 
and  embarrassment  in  the  payment  of  their  taxes,  and  in  re-obtain- 
ing their  title,  in  case  the  same  had  been  forfeited  by  accident  or  neglect. 
As  the  Statutes  at  large  of  the  new  States  have  not  been  conveniently 
accessible  to  the  majority  of  non-resident  land  owners,  and  as  the  legal 
profession  in  the  eastern  and  middle  States,  who  are  often  suspected  of 
being  au  fait  in  such  matters,  have  not  generally  supplied  their  libraries 
with  books  enabling  them  to  advise  in  this  behalf,  a  majority  of  such 
non-resident  land  owners  have  been  left  to  acquire  their  information  by 
an  expensive  journey  to  the  west,  or  to  rely  upon  the  letter  of  a  friend, 
little  better  informed,  perhaps,  than  themselves.  In  view  of  these  and 
other  constantly  recurring  difficulties,  the  author  had  for  some  time 
anxiously  looked  for  the  appearance  of  a  book  from  some  quarter,  con- 
taining the  information  so  generally  wanted  ;  but  discerning  nothing  in- 
dicative of  such  a  result,  he  was  induced  to  undertake  the  execution 
of  one  himself,  in  the  hope  that  if  it  did  not  fully  answer  the  public 
want,  it  would  nevertheless  be  of  some  service,  as  well  to  the  profession 
and  conveyancers,  as  to  such  of  his  fellow  citizens  as  have  lands  in,  or 
commerce  with  the  inhabitants  of  the  States  from  whose  statutes  the  ma- 
terial for  the  folio  wing  pages  was  collected. 


20  PREFACE. 

The  mention  of  a  foreign  State  or  Territory  naturally  suggests  an  in- 
quiry concerning  so  much  of  its  history  as  relates  to  the  title  which  may 
be  acquired  to  its  lands;  and  although  it  has  not  been  the  purpose  of 
the  author  to  spread  upon  these  pages  much  historical  incident,  he  has 
taken  occasion  to  open  each  chapter  with  some  interesting  documentary 
matter,  with  incidental  remarks,  for  the  purpose  of  indicating  generally 
the  source  whence  the  existing  land  titles  in  the  several  States  were  de- 
rived, in  the  hope  of  rendering  the  book  more  acceptable  to  the  general 
reader.  As  they  precede  the  political  organization  of  the  States,  it  was 
believed  that  they  would  be  in  place  as  an  introduction  to  the  organic 
and  statute  regulations  concerning  lands,  and  the  tenures  by  which  the 
same  are  now  held. 

As  the  early  history  of  the  country  was  long  since  written,  it  is  un- 
necessary to  observe  that  most  of  the  facts  embraced  in  the  remarks 
which  accompany  the  documents,  are  given  on  the  authority  of  the  emi- 
nent gentlemen  referred  to  in  the  notes  appended.  Indeed,  very  little 
of  originality  is  claimed  for  any  portion  of  the  work,  as  it  professes  to 
be  for  the  most  part  only  an  epitome  and  arrangement  of  pre-existing 
matter,  prepared  with  the  hope  and  desire  of  placing  it  within  the  reach 
of  those  to  whom  it  was  not  before  conveniently  accessible. 

That  embraced  within  the  first  chapter  of  this  work  was  not  with- 
in the  compass  of  the  original  design,  but  was  subsequently  pre- 
pared at  the  suggestion  of  a  gentleman  of  high  judicial  standirer.  to  the 
end  that  persons  residing  at  the  west,  and  having  commerce  or  dealing 
with  the  inhabitants  of  New- York,  or  owning  lands  therein,  might,  from 
this  volume,  derive  the  same  information  concerning  the  statutes  of  the 
latter  State,  as  the  remaining  chapters  profess  to  give  of  those  in  the 
States  northwest  of  the  Ohio.  Many  of  the  recent  emigrants  thereto 
from  New-York  yet  retain  their  original  possessions  here,  and  are 
thereby  concerned  for  their  preservation,  equally  with  those  who  are 
non-resident  owners  of  lands  at  the  west.  It  was  therefore  believed 
that  the  suggestion  was  entitled  to  consideration,  and  in  view  of  the 
general  usefulness  of  the  Manual,  that  the  matter  relating  to  the  docu- 
mentary history  and  statute  regulations  of  New-York  should  be  in- 
serted. 

It  will  be  seen  that  in  preparing  the  chapter  relating  to  Wisconsin, 
she  was  regarded  as  a  State  in  anticipation  of  an  approval  by  the  peo- 
ple of  the  Constitution  adopted  in  the  Convention  of  Delegates,  held 
at  Madison,  on  the  fourteenth  day  of  December,  eighteen  hundred  and 
forty-six.  All  the  usual  incipient  measures  had  been  taken  for  the  ap- 


PREFACE.  21 

proval  of  that  instrument  by  Congress,  and  for  her  admission  into-  the 
Union  on  the  same  footing  with  the  original  States ;  and  as  the  rejection 
of  her  first  Constitution  was  not  apprehended,  until  after  that  part  of 
the  manuscript  had  gone  to  press,  an  apparent,  although  not  an  im- 
portant misnomer,  occurs  in  the  chapter  head.  The  rejection  of  that  in- 
strument leaves  her  to  remain  under  a  territorial  organization,  until 
another  shall  have  been  formed  and  ratified  by  the  people. 

As  land  titles  are  protected,  and  to  some  extent  regulated,  by 
the  Constitution  of  every  commonwealth,  it  has  been  deemed  advisable 
to  insert  those  of  the  States  noticed,  in  an  Appendix,  with  a  reference 
thereto  in  the  body  of  the  work.  Upon  a  careful  examination,  the 
reader  will  find  that  most  of  them  contain  important  provisions  concern- 
ing tenures  and  estates  in  land,  that  should  be  known  to  every  land 
owner. 

If  it  seem  to  the  profession  that  there  has  been  a  departure  from  es- 
tablished forms  of  expression  concerning  tenures  and  estates  in  land, 
the  apology  therefor  rests  in  the  fact  that  this  Manual  was  mainly 
designed  for  the  use  of  land  owners,  most  of  whom  are  unlearned  in 
legal  phraseology,  and  to  whom  the  expressions  used  were  supposed 
to  be  more  in  accordance  with  those  employed  by  themselves  to  express 
the  ideas  intended  to  be  conveyed.  The  license  taken,  therefore,  was 
not  without  the  desire  and  design  of  good,  however  ill  adapted  may  be 
the  language  employed  for  the  attainment  of  such  an  end. 

In  consequence  of  the  frequent  and  almost  innumerable  alterations 
in,  and  amendments  and  revisions  of  the  Statutes  of  the  new  States,  that 
have  occurred  within  the  last  ten  years,  the  procurement  of  the  mate- 
rial for  the  following  pages  has  been  attended  with  some  difficulty  and 
delay.  As  authenticity  is  the  main  desideratum  in  such  a  work, 
much  pains  has  been  taken  to  render  it  reliable.  That  it  will  be  found 
entirely  free  from  imperfections  the  author  will  not  venture  to  pretend  ; 
but  that  it  will  be  found  essentially  faithful,  he  confidently  believes. 
Executed  as  it  has  been  during  intervals  of  professional  business,  errors 
may  have  been  overlooked  that  will  render  it  obnoxious  to  criticism  ; 
yet  if  upon  the  whole,  the  Manual  shall  prevent  a  recurrence  of  any 
considerable  proportion  of  the  difficulties  which  it  was  designed  to  ob- 
viate, the  aim  and  purpose  of  the  author  will  have  been  answered. 


CONTENTS. 

CHAPTER  I, 

STATE  OF  NEW-YORK. 

The  Source  of  Title  to  Lands  in  the  State.  Early  Proprietors  thereof.  Visit  to 
New-York  by  the  Danes  and  Normans.  Exploration  by  Henry  Hudson  and 
Colonization  by  the  Dutch.  Charter  of  the  West  India  Company.  Grants  of 
Freedoms  and  Exemptions  to  Colonists.  Patroonships.  Feudal  Appendages 
and  Pre-emptions.  Article  of  Capitulation  to  the  English.  Grant  of  Charles  II. 
to  James,  Duke  of  York.  Merger  of  Title  in  the  Crown.  Succession  of  the 
People,  thereto  under  the  Treaty  of  Paris.  Cessions  by  the  Native  Proprietors. 
Rights  of  Indians  to  the  Soil.  Guaranties  of  the  present  Constitution.  Land 
Titles  as  Regulated  by  Statute.  Regulations  concerning  the  Execution,  Attesta- 
tion, Proof,  Acknowledgment  and  Recording  of  Conveyances.  Recording  Dis- 
tricts. The  Execution,  Attestation,  Probate  and  Recording  of  Wills  of  Real 
Estate.  The  Statute  of  Descents.  Taxation  of  Lands.  Land-tax  Forfeitures, 
Sales  and  Redemptions.  Limitations.  Exemptions.  Interest  of  Money  and 
Usury. 

CHAPTER  H. 

STATE  OF   OHIO. 

Native  Proprietors  of  the  Territory  northwest  of  the  River  Ohio.  Exploration 
and  Settlement  thereof  by  the  French.  Grants  by  Governors  of  Posts.  The 
Coutume  De  Paris.  Vandreuil's  Capitulation  to  General  Amherst,  and  Surrender 
of  the  Territory  to  Great  Britain.  Extracts  from  the  Charters  of  Massachu- 
setts, Connecticut,  New-York  and  Virginia.  Succession  of  the  United  States  to 
the  rights  of  Great  Britain  over  the  Territory.  Cessions  of  Domain  from  Massa- 
chusetts, Connecticut,  New-York  and  Virginia.  Treaties  extinguishing  the  In- 
dian Right  of  Occupancy.  Ordinance  of  Congress  concerning  the  Territory. 
The  Constitution  of  Ohio.  Land  Titles  generally  in  the  State.  The  Execution, 


CONTENTS.  23 

Attestation,  Proof,  Acknowledgment  and  Recording  of  Conveyances.  The  Exe- 
cution and  Probate  of  Wills  of  Real  Estate.  Descents.  Land  Taxes.  Tax 
Sales  aud  Redemptions,  Limitations  and  Exemptions.  Interest  of  Money,  and 
Usury. 


CHAPTER  HI. 


STATE   OF    INDIANA. 

Source  of  Title  to  Lands  in  Indiana.  Settlement  thereof  by  the  French.  Ca- 
pitulation to  the  English.  The  Quebec  Act.  Relinquishment  of  the  Country  by 
Great  Britain.  The  Cessions  of  Massachusetts,  Connecticut,  New-York,  and 
Virginia.  Erection  of  the  Territory  northwest  of  the  river  Ohio.  Ordinance 
of  1787.  Acts  of  Congress  concerning  the  early  settlers.  The  Erection  and 
Division  of  Indiana  Territory.  Admission  into  the  Union  of  Indiana  as  a  State, 
Her  Constitution.  Land  Titles  generally.  The  Execution,  Attestation,  Proof, 
Acknowledgment  and  Recording  of  Conveyances.  The  Execution,  Attestation, 
Probate  and  Recording  of  Wills  of  Real  Estate.  The  Statute  of  Descents. 
The  Levy  and  Collection  of  Land  Taxes.  Tax  Sales,  Forfeitures  and  Redemp- 
tions. Limitations  and  Exemptions.  Interest  of  Money  aud  Usury. 


CHAPTER  IV, 


STATE  OF  ILLINOIS. 

Source  of  Title  to  Lands  in  Illinois.  Erection  of  Illinois  Territory  from  that 
part  of  Indiana  lying  west  of  the  Wabash.  Act  enabling  the  people  therein  to 
form  a  Constitution  and  State  Government.  Ordinance  accepting  the  proposition 
of  Congress.  Admission  of  Illinois  into  the  Union  as  a  State.  Her  Constitution. 
Land  Titles  generally,  as  regulated  by  Statute.  The  Execution,  Attestation, 
Proof,  Acknowledgment,  Authentication,  and  Recording  of  Deeds  and  Mort- 
gages. The  Execution,  Attestation,  Probate  and  Recording  of  Wills  of  Real 
Estate.  Regulations  concerning  Descents.  The  Levy  and  Collection  of  Land 
Taxes.  Land  Tax  Forfeitures.  Sales  and  Redemptions.  Limitation  upon 
Actions  for  the  Recovery  of  Lands.  The  Statute  of  Exemptions.  Interest  of 
Money  and  Usury. 


24  CONTENTS. 


CHAPTER  V, 


STATE  OF  MICHIGAN. 

Source  of  Title  to  Lands  in  the  State.  Native  Proprietors  thereof.  Erection 
of  Michigan  Territory  from  that  of  Indiana.  Enlargement  of  the  same  upon 
the  Admission  of  Illinois  as  a  State.  Act  of  Congress  authorizing  the  People 
of  the  Territory  to  form  a  Constitution,  and  for  the  Admission  of  Michigan  as 
a  State ;  and  another  to  Establish  the  Northern  Boundary  Line  of  the  State  of 
Ohio,  and  to  Provide  for  the  Admission  of  Michigan  into  the  Union  upon  the 
conditions  therein  expressed.  Her  Constitution,  and  Land  Titles  generally. 
The  Execution,  Attestation,  Proof,  Acknowledgment,  Authentication,  and  Re- 
cording of  Conveyances.  The  Execution,  Attestation,  Probate,  and  Recording 
or  Wills  of  Real  Estate.  Regulations  concerning  Titles  by  Descent.  The  Levy 
and  Collection  of  Land  Taxes.  Land  Tax  Forfeitures,  Sales,  and  Redemp- 
tions. Exemptions.  Interest  of  Money,  and  Usury. 


, 
CHAPTER  VI, 


TERRITORY  OF  WISCONSIN. 

Source  of  Title  to  Lands  in  the  Territory.  Native  Proprietors  thereof.  Ex- 
ploration of  the  country,  and  settlement  by  the  French  at  La  Point  and  Green  Bay. 
Surrender  thereof  to  Great  Britain.  The  Quebec  Act.  The  Charter  of  Virginia. 
Her  Claim  and  Cession  to  the  General  Government.  Wisconsin  a  portion  of  the 
Northwestern  Territory.  Was  set  off  with  Indiana  and  subsequently  with  Illi- 
nois. Was  attached  to  Michigan.  Erection  of  the  Wisconsin  Territory.  Act  of 
Congress  for  the  admission  of  Wisconsin  into  the  Union.  Her  Constitution.  Land 
Titles  generally.  The  Execution,  Attestation,  Proof,  Acknowledgment,  Authenti- 
cation, and  Recording  of  Deeds  and  Mortgages.  The  Execution,  Attestation, 
Probate  and  Recording  of  Wills  of  Real  Estate.  Descent  of  Real  Estate.  Land 
Taxes.  Forfeitures  and  Redemptions.  Limitations.  Exemptions.  Interest  of 
Money,  and  Usury. 


CHAPTER  I. 


THE  STATE  OF  NEW-YORK. 

The  source  of  Title  to  Lands  in  the  State.  Early  Proprietors  thereof.  Visit  to 
New-York  by  the  Dunes  and  Normans.  Exploration  hy  Henry  Hudson  and 
Colonization  hy  tin-  Dutch.  Charter  of  the  West  India  Company.  Grants  of 
Freedoms  and  Exemptions  to  Colonists.  Patroonships.  Feudal  Appendages 
and  Pre-emptions.  Article  of  Capitulation  to  the  English.  Grant  of  Charles  II. 
to  James,  Duke  of  York.  Merger  of  Title  in  the  Crown.  Succession  of  the 
People  thereto,  under  the  Treaty  of  Paris.  Cessions  by  the  Native  Proprietors. 
Righto  of  Indians  to  the  Soil.  Guaranties  of  the  present  Constitution.  Land 
Titles  as  Regulated  l»v  Statute.  !'.< 'filiations  concerning  the  Execution,  Attesta- 
tion, Proof,  Acknowledgment  and  Recording  of  Conveyances;  Recording  Dis- 
tricts. The  Exi-ciition,  Attestation,  Probate  and  Recording  of  Wills  of  Real 
Estate.  The  Statute  of  Descents.  Taxation  of  L;>nds.  Land-tax  Forfeitures, 
Sales  and  Redemptions.  Limitations.  Exemptions.  Interest  of  Money  and 
Usuiy. 

I.     THE  SOURCE  OF  TITLE  TO  LANDS  IN  NEW-YORK. 

THE  discovery  and  possession  of  lands  on  the  American 
Continent,  by  Europeans  acting  under  the  authority  of  an 
existing  government,  constitute  the  original  title  under  which 
the  same  are  now  held.  That  title  was  the  exclusive  power 
of  acquiring  the  soil  by  extinguishing  the  Indian  right  of 
occupancy.  [Johnson  et  al  vs.  Mclntosh,  8  Wheaton,  548 ; 
5  Condensed  Reports,  515.] 

All  Land  Titles  in  New-York  are  consequently  derived 
from  that  remote  but  common  source  ;  and  involve  a  very 
choice  and  interesting  portion  of  the  documentary  history  of 
the  State. 

The  precise  period  when  the  first  claim  of  title,  grounded 
2 


26  SOURCES  OF  LAND  TITLES  IN 

on  discovery,  might  have  been  made  to  her  soil,  rests 
mainly  in  conjecture;  yet  authors  assert,  with  confidence, 
that  five  hundred  years  before  Columbus  entered  the  western 
ocean,  it  was  visited  by  Danes  and  Normans,  who  pushed 
their  way  from  Iceland  to  Greenland,  and  thence  southwest- 
erly "to  a  climate  that  was  temperate,  to  a  soil  that  was 
fruitful,  and  to  a  majestic  river  flowing  south  through  mag- 
nificent highlands."  So  well  has  this  been  established,  that 
it  has  come  to  be  regarded  as  a  well  authenticated  historical 
fact ;  and  moreover,  that  even  those  early  visitors  were  pre- 
ceded by  another  race  who  were  in  possession  of  the  country, 
and  claiming  the  same  as  native  proprietors. 

This  induces  an  inquiry  concerning  the  claimants,  which 
reaches  back  into  an  age  whose  records  are  forever  lost  to 
history. 

Of  those  who  have  reconnoitered  it,  but  few  have  re- 
turned laden  with  facts,  others  only  with  food  for  crazy  con- 
jecture. Some  report  the  aborigines  as  descendants  of  the 
lost  tribes  of  Israel ;  some  that  they  are  of  Tartar  origin ;  and 
others  that  they  are  indigenous  to  the  continent.  Hut  until 
more  evidence  is  adduced  in  support  of  the  former  position, 
and  until  the  theory  of  multiform  creations  can  be  maintained 
in  opposition  to  the  record  of  Moses,  both  the  former  and 
latter  opinions  must  be  rejected.  Such  theories,  it  is  true, 
are  largely  imposed  on  the  credulity  of  the  nge;  but  as 
against  the  evidence  that  supports  the  second  proposition, 
they  cannot  prevail. 

It  is  admitted  that  orthographical  inquirers  have  found 
words  in  the  dialects  of  the  tribes  resembling  those  in  the 
Hebrew,  and  which  are  uttered  with  similarity  of  intonation ; 
and  in  the  absence  of  better  evidence,  such  facts  excite  a 
suspicion  that  the  aborigines  descended  from  Hebrew  stock. 

No  well  grounded  conclusion,  however,  can  be  arrived  at 
from  such  premises. 

It  is  axiomatic  that "  that  which  is  certain  and  unchangeable 


NEW-YORK.  27 

prevails  against  that  which  is  uncertain  and  cha-ngeable ;" 
and  it  is  believed  that  no  language,  dialect  or  tongue,  spoken 
since  the  confusion  at  Babel,  can  be  found,  wherein  there  is 
not  some  remote  resemblance  in  etymology,  accent,  or  intona- 
tion, to  some  other  language,  dialect  or  tongue  also  spoken. 
Resemblances  to  the  Greek  or  Celtic  exist  in  the  dialects  of 
the  tribes  as  striking  as  any  which  have  been  found  to  the 
Hebrew.  Etymology  is  not  reliable  data.  Neither  is  simi- 
larity of  pronunciation  safe  criteria. 

Never,  since  the  great  catastrophe  upon  tha  plains  of  Shinar, 
has  there  existed  a  spoken  language  which  was  uttered  with 
sounds  that  could,  in  every  vibration,  be  gathered  by  ears 
wholly  unaided  by  custom  or  experience;  and  where  no 
legible  hyeroglyphics  can  be  found,  and  no  key  obtained, 
except  from  intonations  varying  with  every  speaker,  such  a 
test  is  of  doubtful  accuracy.  "  Of  all  sources  of  information," 
says  McKenney  in  his  lectures,  "by  which  the  descent  of 
nations  can  be  traced,  I  consider  the  deductions  of  etymology 
the  most  uncertain.  It  is  difficult,  in  such  cases,  to  fix  with 
accuracy  the  true  sound  of  words  ;  and  it  is  well  known  that 
coincidences  exist  in  many  languages  radically  different  from 
one  another,  and  spoken  by  communities  whose  separation 
from  any  common  stock  precedes  all  historic  monuments." 
To  the  high  authority  of  that  bureau  officer,  may  be  super- 
added  the  opinion  of  the  celebrated  John  Ledyard,  "that  a 
foreigner's  ear  is  too  slow  to  catch,  with  accuracy,  the  guttural 
tones  and  inflections  of  an  Indian's  voice." 

But  "the  Ethiopian  cannot  change  his  skin,  nor  the  leop- 
ard his  spot."  They  are  enduring  monuments  of  ancestral 
identity — unfading  testimonials  of  their  race.  They  are 
facts — facts  resting  in  the  immutable  laws  of  animal  being  ; 
and  consequently  are  of  themselves  a  data  far  more  reliable 
than  any  to  be  found  in  etymology  or  sounds. 
A  The  Caucasians  were  white,  as  have  been  all  descend- 
lints  of  the  parent  stock.  The  Ethiopians  were  black,  as 


28  NATIVE  PROPRIETORS  OF 

have  been  their  descendants.  And  the  Asiatic  Tartars 
were  red,  as,  according  lo  the  course  of  nature  their  descend- 
ants must  have  been.  And  as  it  is  both  credible  and  credit- 
ed, that  the  whites  of  the  present  day  were  of  Caucasian 
origin,  and  that  the  blacks  were  of  Ethiopian,  it  is  no  less 
credible  or  probable  that  the  red  inhabitants  of  Tartary 
were  the  ancestors  of  the  red  men  of  America. 

Other  facts  corroborate  this  opinion.  Whilst  the  races  of 
men  have  been  unable  to  change  their  skin,  they  have  also 
found  it  difficult  to  alter  the  contour  of  their  skulls.  The 
skulls  of  the  several  races  are  widely  dissimilar,  and  yet 
those  of  the  Tartar  and  Indian  correspond. 

And  if  manners  and  customs  have  any  influence  in  deter- 
mining the  question,  sufficient  points  of  similitude  between 
those  of  the  Tartar  and  North  American  Indian  have  been 
discovered  to  exhaust  the  power  of  common  arithmetic.  An 
enumeration  cannot  be  here  attempted.  But  there  is  a  sim- 
ilarity in  their  modes  of  obtaining  subsistence,  in  their  war- 
fare, and  domestic  arrangements.  Both  are  archers,  both 
lead  a  wandering  life,  both  dornicil  in  huts,  both  have  the 
same  token  of  recognition,  both  have  plaintive  music,  both 
are  energetic  and  hardy,  and  both  raise  pyramids  over  the 
sepulchres  of  their  dead.  We  assume,  therefore,  that  Tar- 
tars preceded  the  Danes  and  Normans  in  the  discovery  arid 
occupancy  of  America. 

The  Tartars,  according  to  Josephus,  sprung  from  Japheth, 
the  third  son  of  Noah,  the  navigator  and  survivor  of  the 
flood.  By  a  reference  to  the  sacred  history  of  the  century 
which  succeeded  that  remarkable  event,  in  which  to  avert 
the  disaster  of  another  deluge,  the  progeny  of  Noah  begun 
the  tower,  until  which  event  one  language  was  alone  spoken, 
it  will  be  seen  that  they  were  not  only  confounded  in  lan- 
guage, " that  they  might  not  understand  one  another"  but 
they  were  scattered  abroad  "from  thence,  upon  the  face  of  all 
the  earth" 


NEW-YORK.  29 

Having  found,  upon  the  plains  of  Tartary,  the  parent 
stock  of  the  original  proprietors  of  our  soil,  the  era  and 
manner  of  their  emigration,  is  the  next  inquiry. 

The  era  is  forever  lost  to  chronology,  but  the  manner 
may  have  been  by  land,  but  probably  was  by  water,  at 
Behring's  Straits.  McKenney  thinks  it  "  the  more  enlight- 
ened opinion,"  that  there  was  formerly  an  isthmus,  connect- 
ing the  continents.  If  such  were  the  case,  they  may  have 
crossed  dry  shod  to  this  country  ;  and  if  the  contrary  be 
true,  then  less  than  fifty  miles  of  navigation,  by  accident  or 
design,  brought  them  to  our  shores,  where  they  have  multi- 
plied, and  dwelt  in  numberless  tribes,  cantons  and  confed- 
eracies, to  the  present  day. 

The  Alleghans  appear  in  aboriginal  history  as  the  most 
ancient  of  the  tribes  of  North  America.  Like  their  ances- 
tors in  Tartary,  they  were  noble,  valiant,  and  populous. 
They  possessed  considerable  knowledge  of  agriculture  and 
of  the  arts,  of  the  policy  of  government,  of  implements  of 
war,  and  fortifications  for  defence.* 

The  latter  acquirements  indicate  the  existence  of  an  enemy 
sufficiently  powerful,  in  their  estimation,  to  jeopard  their 
safety.  That  such  an  enemy  was  found  in  the  Iroquois 
confederacy  is  now  established  by  the  concurrent  testimony 
of  tradition,  and  the  line  of  fortifications  along  the  Ohio  Val- 
ley, Lake  Erie,  and  in  Western  New- York. 

The  Alleghans  were,  doubtless,  the  mound  builders  of 
North  America.t  It  is  believed  that  they  once  occupied, 
a  considerable  portion  of  New-York. 

According  to  Davies,  they  cultivated  corn  and  apples  in 
large  quantities,  and  dwelt  together  in  towns.  Although 
they  were  more  intelligent,  and  equally  valiant,  they  were 
less  hardy  than  the  Iroquois,  who  succeeded  them.  They 
fortified  their  camp  with  earthen  walls,  as  they  moved  from 
place  to  place,  but  were  nevertheless  besieged  or  driven 

*  N.  Y.  Historic  So.  Col.,  Vol.  2.     t  Schoolcraft's  notes  on  the  Iroquois,  1846. 


30  NATIVE  PROPRIETORS  OF 

from  them  by  the  Iroquois,  who  followed  them  from  the 
Mississippi  Valley  to  the  St.  Lawrence.* 

Whether  the  Iroquois  were  an  offshoot  from  the  Alleghans, 
or  were  more  recent  descendants  from  the  parent  stock,  is 
not  known.  The  best  opinions  are,  that  they  had  long  ex- 
isted in  the  south,  before  they  waged  the  exterminating 
war  upon  the  Alleghans,  which  drove  the  latter  up  the  val- 
ley of  the  Ohio,  and  caused  the  erection  of  the  numberless 
earthen  forts,  as  they  receded  from  their  pursuers. 

"  A  series  of  old  forts/'  says  Schoolcraft,  "  anterior  in  age 
to  the  Iroquois  power,  extends  along  the  shores  of  Lake 
Erie,  and  even  as  far  east  as  the  ancient  Osco,  which  have 
striking  points  of  identity  with  those  in  the  valleys  below, 
and  are  believed  to  have  been  erected  by  the  same  people." 

The  prevailing  opinion  among  ethnological  writers  is, 
that  the  Alleghans  were  in  existence,  as  a  tribe  or  confed- 
eracy, long  before  the  discovery  of,  America  by  Columbus ; 
and  that  they  were  the  mound  builders  of  whom  so  little  has 
been  known.  In  corroboration  of  this,  much  evidence  may 
be  derived  from  an  old  Fort  in  Highland  county,  Ohio,  where 
there  is  reliable  data  of  its  abandonment  before  Columbus 
entered  the  western  ocean ;  and  of  its  erection,  above  six 
hundred  years  before;!  also,  Grave  Creek  mound,  whose 
trenches  were  abandoned  in  1308. 

The  ramparts  at  Marietta  bear  the  same  evidence.  Fort 
Osco,  near  the  beautiful  village  of  Auburn,  is  no  less  "  elo- 
quent of  antiquity.'1  As  late  as  1820,  Macauley,  the  histo- 
rian, counted  the  rings  on  a  chesnut  stump,  standing  in  one 
of  its  moats,  and  another  standing  near  it,  and  determined 
that  one  germinated  prior  to  1492,  and  the  other  in  1555. t 

Archaeological  evidence  and  tradition  concur  in  the  fact 
that  the  Alleghans  were  a  confederacy ;  that  such  confed- 
eracy fell  in  the  twelfth  or  thirteenth  century  ;  and  that  they 

*  Gen.  Harrison's  Discourse.  t  N.  Y.  Ethnological  Society,  1846. 

t  Macauley'a  History  of  New-York,  vol.  2. 


NEW-YORK.  31 

were  finally  subdued  by  the  bolder  and  hardier  Iroquois, 
who,  with  a  few  cantons  of  Algonquins,  were  in  possession 
of  the  territory  now  embraced  in  New- York,  at  the  period  of 
the  settlement  of  the  New-Netherlands  by  the  Dutch  in  1614.* 

The  Iroquois  were,  therefore,  successors  to  the  Alleghans, 
and  the  predecessors  of  the  early  white  settlers  of  New- 
York.  Composed  of  six  of  the  most  powerful  tribes,  bound 
together  in  an  honorable  league,  the  Iroquois  confederacy 
remained  for  a  long  period  a  tower  of  strength  which  has  no 
parallel  in  history.  Although  they  were  inferior  to  their 
predecessors  in  knowledge  of  the  arts,  they  were  superior  in 
government.  They  came  together  as  independent  tribes, 
and  their  confederacy  was  a  perfect  union.  Each  canton 
had  its  civil  and  military  chieftain — the  former  to  preside 
in  council,  the  latter  to  marshal  its  warriors  in  the  field. 
The  former  were  termed  sachems,  or  sages,  and  represented 
the  several  cantons  in  the  Grand  Council — the  latter  carried 
out  the  unanimous  resolves  of  the  sachems,  and  were  dis- 
graced by  any  disobedience  of  orders.  In  council,  entire 
unanimity  was  requisite  to  a  decision.!  This  gave  im- 
portance and  efh'cacy  to  the  vote  of  every  sachem. 

Upon  the  matrons  was  conferred  the  power  to  decide 
when  the  war-club  should  be  dropped  and  hostilities  cease. 
This  provision  enabled  a  tribe  to  abandon  a  warfare,  with- 
out compromiting  its  character  for  bravery. 

The  ONONDAGAS  were  the  parent  tribe,  out  of  which 
sprung  the  Mohawks,  Oneidas,  Cayugas,  Senecas,  ar:d  Tus- 
caroras,  who,  with  their  parent,  constituted  the  Iroquois,  or 
Six  Nations. {  The  offshoots  took  place  while  the  Ononda- 
gas  were  upon  the  Oswego  river,  where  they  had  located 
themselves  for  some  reason  not  now  definitely  understood. 
Requiring  a  large  range  for  subsistence,  they  migrated  from 
one  region  to  another,  as  want  of  game  in  one  place,  and 
abundance  in  another,  suggested.  Their  movements  were 

*  Legislative  Doc.  1346.  t  Clinton's  Discourse.          J  iSchoolcraf  t. 


32  NATIVE  PROPRIETORS  OF 

up  the  Oswego  river,  and  upon  reaching  Three  River  Point,  a 
part  went  up  the  eastern  fork,  and  pushed  over  the  summit 
into  the  valley  of  the  stream  flowing  east,  and  became  the 
Mohawks.*  Another  portion  went  up  the  western  fork,  and 
upon  reaching  the  outlet  of  Cayuga  Lake,  divided,  and 
formed  the  Cayugast  on  the  east,  and  Senecas  on  the  west.i 
When  the  Onondagas  reached  the  hill  country,  now  known 
as  Onondaga,  there  went  out  another  offshoot  eastward,  and 
became  the  Oneidas.  The  Tuscaroras  sprung  from  the  pa- 
rent tribe,  at  a  remote  day,  and  went  south,  whence  they 
were  brought  back  by  the  Oneidas,  by  whose  chieftains  they 
were  marshaled  and  protected  in  the  war  with  the  French, 
and  subsequently  on  the  side  of  the  States  in  the  Revolution.!! 
The  effect  of  this  separation  appears  to  have  been  a  rapid 
increase  in  numbers,  and  afterwards  the  generation  of  dis- 
putes about  territory.  The  Mohawks  became  quarrelsome, 
the  Oneidas  intemperate,  the  Onondagas  overbearing,  and 
the  Cayugas  and  Senecas  disposed  to  a  wandering  indolence. 
They  often  built  forts  and  entrenchments  for  the  protection 
of  their  women  and  children,  while  they  were  abroad  in 
warfare,  hunting,  or  fishing.  The  women  cultivated  patch- 
es of  corn,  and  performed  labor  and  drudgery  about  their 
wigwams.  After  that  manner  the  Iroquois  lived  in  New- 
York,  prior  to  the  seventeenth  century,  sometimes  increas- 
ing, but  generally  decreasing,  until  the  calamities  of  war, 
the  ravages  of  pestilence,  and  the  laws  of  vitality  reduced 
and  disorganized  them. 

*  Brant  was  of  this  tribe,      t  Logan  was  a  Cayuga.    +  Red  Jacket  was  a  Seneca. 

||  Mingoc.s  is  the  self-designation  of  tlio  Six  Nations.  Tho  Dutch  called  them 
Maquas,  and  the  Virginia  Indians,  Ma»tawtH*ek«l.  The  French  missionaries 
gave  them  the  appellation  of  Irofjuois,  which  ha*  been  the  more  popular  term. 
Logan,  Brant,  and  Red  Jacket,  were  Mingo  chief?.  Logan  is  believed  to  have 
been  born  at  Osco,  near  Auburn,  and  that  he  went  with  his  father  to  Shamokin,  in 
Pennsylvania,  where  the  latter,  according  to  Loskiel,  died  in  1749,  having  pre- 
viously been  converted  to  the  Catholic  faith,  by  Jesuit  missionaries.  The  Cayu- 
gus  that  had  left  New-York  to  hunt  in  that  region,  soon  after  went  into  the  Ohio 
Valley,  where  Logan  attained  manhood  und  became  a  chieftain. 


NEW- YORK.  33 

Besides  these,  there  were  within  the  present  boundaries  of 
the  State  several  tribes  of  a  race  known  as  the  Algonquins, 
or  Algonquin-Lenapes,  most  of  whom  hunted  and  fished  in 
the  southern  portion  of  the  State. 

Their  rights  to  domain,  however,  as  well  as  those  of  the 
Iroquois,  have  been,  with  a  few  exceptions,  entirely  extin- 
guished. 

II.  POSSESSION  OF  A  PORTION  OF  THE  STATE  BY  IMMI- 
GRANTS FROM  HOLLAND. 

History  accredits  JEAN  DE  VERRAZZANO,  a  Florentine  in 
the  service  of  France,  as  the  earliest  visitor  to  New- York, 
subsequent  to  the  discovery  of  the  continent  by  Columbus. 
It  is  said  that  he  entered  New- York  bay  in  1524,  but  departed 
after  having  obtained  a  supply  of  water. 

The  next  white  visitors  were  a  crew  of  sailors  engaged  in 
the  Dutch  West  India  trade,  who  in  1598  put  into  the  harbor 
of  New- York,  with  a  view  of  having  a  place  of  shelter  during 
the  winter  months  ;  and  for  which  purpose  they  built  two 
small  forts,  one  on  the  North  and  one  on  the  South  River,  to 
protect  them  against  the  attacks  of  the  Indians.* 

On  the  fourth  day  of  September,  1609,  Sir  HENRY  HUDSON 
anchored  in  the  waters  of  "The  Great  North  River  of  NEW- 
NETIIERLAND.  Discovering  that  the  Bay  was  the  entrance 
to  what  appeared  to  be  an  extensive  river,  Hudson  despatched 
five  of  his  crew  to  make  a  particular  examination,  who,  in 
attempting  to  do  so,  were  attacked  by  Indians,  and  one  of 

*"  Niomv  Noderiandt,  gelegen  ae.n  de  bunion  van  America,  tusschen  de  Engelshe 
Viririnios  en  N.  Enielandr,  streckrnde  van  Zuytlt  Revier,  gelegen  op  38jJ  graeden, 
tot  Cabo  Malubaer,  <>p  do  boos^te  van  41^  graeden,  i*  eerst  bevaren  door  de  Inges- 
etonen  van  desen  Stant  in  den  jaor  1~)!)3,  on  in.sondcvheyt  by  die  van  den  Grocnlant- 
srho  Convpaine,  doch  .--under  va?to  habitatie  te  maakcn,  al*  olleen  tot  een  verblyiF 
in  do  winter.  Tot  wclrken  eynde,  aldacr  twee  fortjcens  aen  de  Zuydt  en  Noordt 
iiovioron  tegetudenaenloopden  ^Vildon  heljben  geworpen.  Rapport  enadvysover 
do  ^el«>Lrenilioyt  van  Nieuw  Nederlandt  getrokken  uyt  de  stukken  en  papieren  by 
Commissie  dor  Veriraderinrre  der  XIX  in  dato  15  dec  1611.  Hoi.  doc.  ii-  363. 
[O'Cullajlian's  History  of  Ncw-Netherlaml.] 


34  HUDSON'S  VISIT  TO 

their  number  killed  by  an  arrow  shot  into  his  throat.  The 
sailor  killed,  bore  the  name  of  John  Coleman,  and  was  buried 
at  Sandy  Hook,  at  a  place  ever  since  known  as  COLEMAN'S 
POINT. 

Oa  the  eleventh,  the  Half  Moon*  stood  up  through  the 
Narrows,  and  on  the  twelfth.  Sir  Henry  began  the  exploration 
of  the  North  River,  in  the  hope  of  rinding  a  north-west  pas- 
sage to  China.  After  having  ascended  to  a  point  near  the 
present  city  of  Albany,  he  returned  to  Hoboken,  and  thence 
to  Holland,  where  he  reported  the  magnificent  country  which 
his  prowess  had  discovered. 

We  pause  here  to  notice  the  location  of  the  several  Indian 
tribes  about  the  Hudson  River.  Upon  the  upper  waters  were 
the  Maquaas  or  Mohawks ;  below  them  were  the  Mahicanders 
or  River  Indians;  and  on  East  River  were  the  Pequods, 
AVampanoaors,  Malowwacks,  and  other  tribes  of  the  Algon- 
quin-Lenape  family.  The  Delawares  were  mostly  on  the 
Jersey  shore. 

In  1610,  another  vessel  was  despatched  to  the  New-Neth- 
erland  with  a  cargo  of  merchandise,  to  be  exchanged  with 
the  Indians  for  furs.  Others  soon  followed,  and  returned 
laden  with  a  profusion  of  that  commodity. 

The  eligibility  of  New-York  for  commerce  was  readily 
apprehended  by  Europeans,  and  the  same  soon  became  the 
head  quarters  of  the  trade.  Their  establishments  consisted 
of  four  houses,  which  were  placed  under  the  superintendence 
of  one  HENDKICK  CORSTIAENSKN,  who  visited  every  Indian* 
settlement  in  that  vicinity,  and  thereby  secured  all  the  furs 
that  the  tribes  were  able  to  furnish. 

In  1613,  one  Captain  ARGAL,  of  Virginia,  visited  the  Island 
of  Manhattan,  with  a  view,  it  is  said,  of  looking  after  a  grant 
of  land  which  he  had  obtained  there  from  the  Virginia  Com- 
pany, soon  after  which  he  obliged  Corstiaensen  to  submit 
himself  and  his  charge  to  the  Governor  of  Virginia,  and  to 

*  The  vessel  in  which  Hudson  sailed. 


NEW.YORK.  35 

agree  to  pay  tribute,  in  token  of  his  dependence  on  the  Eng- 
lish Crown. 

As  soon  as  the  news  of  this  event  reached  the  merchants 
in  Holland,  measures  were  taken  to  obtain  an  exclusive  right 
to  trade  at  this  and  other  points  where  trade  had  been  opened 
through  their  efforts  and  enterprise.  Whereupon,  peti- 
tions were  presented  to  the  Assembly  of  Holland  and  West 
Friesland,  praying  that  the  States  General  be  recommended 
to  pass  an  ordinance  conferring  on  those  who  had,  or  might 
thereafter  discover  new  lands,  the  exclusive  privilege  of  ma- 
king six  voyages  thither.  In  compliance  with  this  request, 
the  following  Octroy  was  passed: 

III.  OCTROY  OP  THE  STATES  GENERAL  OF  THE  UNITED 
NETHERLANDS. 

"  The  States  General  of  the  United  Netherlands :  To 
all  those  to  whom  these  presents  shall  come,  or  who  shall 
hear  them  read,  Health !  BE  IT  KNOWN,  Whereas,  Wre 
understand  it  would  be  honorable,  serviceable,  and  profitable 
to  this  country,  and  for  the  promotion  of  its  prosperity,  as 
well  as  for  the  maintenance  of  sea-faring  people,  that  the  good 
Inhabitants  should  be  excited  and  encouraged  to  employ  and 
occupy  themselves  in  the  seeking  out  and  discovery  of  Cour- 
ses, Havens.  Countries,  and  Places  which  have  not,  before 
now,  been  discovered  or  frequented ;  and  having  been  in- 
formed by  some  traders  that  they  intend,  through  God's 
merciful  help,  by  diligence,  trouble,  danger,  and  expense,  to 
employ  themselves  thereat,  as  -they  should  expect  to  derive 
handsome  profit  therefrom,  if  it  pleased  Us  to  privilege,  octroy 
and  favor  them,  that  they  should  alone  resort  and  sail  to,  and 
frequent  the  Courses,  Havens,  Countries,  and  Places,  by  them 
newly  found  and  discovered,  for  six  voyages,  in  compensa- 
tion for  their  outlays,  troubles,  and  dangers :  With  interdiction 
to  all,  directly  or  indirectly  to  resort  or  sail  to,  or  frequent  the 
said  Courses,  Havens,  Countries,  or  Places,  before  and  sooner 


36  COLONIZATIOiN  OF 

than  the  first  discoverers  and  finders  thereof  shall  have  com- 
pleted the  aforesaid  six  voyages : — 

"  We,  therefore,  having  duly  weighed  the  aforesaid  matter, 
and  finding,  as  herebefore  stated,  the  aforesaid  undertaking 
to  be  laudable,  honorable,  and  serviceable  to  the  prosperity  of 
the  United  Provinces,  and  wishing  that  the  trial  should  be 
free  and  common  for  all  and  every  of  the  Inhabitants  of  this 
country,  have,  and  do  hereby,  invite  all  and  every  of  the 
Inhabitants  of  the  United  Netherlands  to  the  aforesaid  search, 
and,  therefore,  have  granted  and  consented,  grant  and  con- 
sent hereby  that  those  who  any  new  Courses.  Havens, 
Countries,  or  Places,  shall  from  now  henceforward  discover, 
they  alone  shall  resort  to  the  same  or  cause  them  to  be  fre- 
quented, for  four  voyages,  without  any  other  person  having 
the  power  to  sail,  resort  to,  or  frequent,  directly  or  indirectly, 
from  the  United  Provinces,  the  said  newly  found  and  dis- 
covered Courses,  Havens,  Countries,  or  Places,  before  the 
first  finder  and  discoverer  thereof  shall  himself  have  made, 
or  cause  to  be  made,  four  voyages,  on  pain  of  confiscation  of 
the  ships  and  goods  with  which  he  shall  contrary  hereto 
make  the  attempt,  and  a  fine  of  Fifty  Thousand  Netherlands 
Ducats,  to  the  profit  of  the  aforesaid  finder  or  discoverer. 
Well  understanding  that  the  finder,  on  completion  of  the  first 
voyage,  shall  beholden,  within  fourteen  days  after  his  return 
from  said  voyage,  to  deliver  to  Us  a  pertinent  report  of  the 
aforesaid  discovery,  that,  his  adventures  thereupon  being 
heard,  it  may  be  adjudged  and  declared  by  Us,  according  to 
circumstances  and  distance,  within  what  time  the  aforesaid 
four  voyages  shall  be  fully  completed. 

"Provided  that  We,  hereby,  do  not  understand  to  prejudice 
or  in  any  way  diminish  our  former  Grants  and  Concessions; 
And  if  within  the  same  time,  or  in  one  year,  one  or  more 
Companies  find  and  discover  such  new  Courses,  Passages, 
Countries,  Havens,  or  Places,  the  same  shall  enjoy  together 
there  Our  Grant  and  Privileges ;  and  in  case  any  differences 


NEW-YORK.  37 

or  questions  should  arise  concerning  these,  or  happen  other- 
wise to  spring,  or  proceed  from  these  Our  Concessions,  such 
shall  be  decided  by  Us,  according  to  which  each  shall  be 
bound  to  regulate  himself.  And  in  order  that  these  Our  Con- 
cessions shall  be  known  equally  by  all,  have  We  ordered 
that  these  be  published  and  affixed  at  the  accustomed  places 
in  the  United  Countries. 

"Thus  Given  at  the  Assembly  of  the  High  and  Mighty 
Lords  States  General,  at  Gravenhague,  this  27th  day  of 
March,  in  the  year  1614."  [Holland  Document.] 

After  this  was  promulgated,  the  merchants  of  Amsterdam 
fitted  out  five  ships  for  the  Netherland  trade,  which  soon 
reached  Manhattan,  where  a  settlement  was  begun  in  1614. 
On  their  return  to  Holland,  they  made  a  brilliant  report  of 
their  discoveries,  whereupon  the  interested  parties  repaired 
to  the  Hague  and  obtained  of  the  States  General  the  follow- 
ing special  grant: 

IV.  SPECIAL  GRANT  OP  PRIVILEGES  BY  THE  STATES 
GENERAL. 

"The  States  General  of  the  United  Netherlands  to  all  to 
whom  these  presents  shall  come,  greeting.  WHEREAS  Gerrit 
Jacob  Witsen,  former  burgomaster  of  the  city  of  Amsterdam, 
Jonas  Witsen  and  Simon  Morissen.  owners  of  the  ship  called 
the  Little  Fox,  (het  vosje,)  Captain  Jan  de  Witt,  master ; 
Hans  Hongers,  Paul  Pelgrom,  and  Lambrecht  van  Tween- 
huysen,  owners  of  the  two  ships  called  the  Tiger  and  the 
Fortune,  Captains  Adriaen  Block  and  Hendrick  Corstiaensen, 
masters;  Arnoudt  van  Lybergen,  Wessel  Schenck,  Hans 
Claessen,  and  Barent  Sweetsen,  owners  of  the  ship  the  Night- 
ingale, (Nochtegael,)  Capt.  Thuys  Volckertsen,  merchant  in 
the  city  of  Amsterdam,  master;  and  Pieter  Clementsen 
Brouwer,  Jan  Clementsen  Ivies,  and  Cornelis  Volkertsen, 
merchants  in  the  city  of  Hoorn,  owners  of  the  ship  the  For- 
tune, Capt.  Cornelis  Jacobsen  Mey,  master,  have  united  into 


38  GRANT  OF  PRIVILEGES  IN 

one  company,  and  have  shown  to  Us,  by  their  petition,  that 
after  great  expenses  and  damages,  by  loss  of  ships  and  other 
perils,  during  the  present  year,  they,  with  the  abovenamed 
five  ships,  have  discovered  certain  new  lands,  situated  in 
America,  between  New-France  and  Virginia,  being  the  sea- 
coasts  between  40  and  45  degrees  of  latitude,  and  now  called 
NEW  NETHERLAND: — 

"And  whereas,  they  further  represent  that  We  did,  in  the 
month  of  March,  publish,  for  the  promotion  and  augmenta- 
tion of  commerce,  a  certain  consent  and  grant,  setting  forth 
that  whosoever  should  discover  new  havens,  lands,  places, 
or  passages,  should  be  permitted  exclusively  to  visit  and 
navigate  the  same  for  four  voyages,  without  permitting  any 
other  person  out  of  the  United  Netherlands  to  visit  or  fre- 
quent such  newly  discovered  places,  until  the  said  discoverers 
shall  have  performed  the  four  voyages,  within  the  space  of 
time  prescribed  to  them  for  that  purpose,  under  the  penalties 
therein  expressed,  &c.,  and  request  that  we  should  be  pleased 
to  accord  to  them  due  testimony  of  the  aforesaid  grant  in  the 
usually  prescribed  form : 

"WHEREFORE,  the  premises  having  been  considered,  and 
We,  in  our  Assembly,  having  communication  of  the  pertinent 
report  of  the  petitioners  relative  to  the  discoveries  and  finding 
of  the  said  new  countries  between  the  abovenamed  limits  and 
degrees,  and  also  of  their  adventures,  have  consented  and 
granted,  and  by  these  presents  do  consent  and  grant,  to  the 
said  petitioners,  now  united  into  one  company,  that  they^shall 
be  permitted  exclusively  to  visit  and  navigate  the  above  de- 
scribed lands,  situate  in  America,  between  New-France  and 
Virginia,  the  seacoasts  of  which  lie  between  the  40th  and 
45th  degrees  of  latitude,  and  which  are  now  named  NEW 
NETHERLAND,  as  is  to  be  seen  on  the  figurative  maps  by 
them  prepared  ;  and  to  navigate,  or  cause  to  be  navigated, 
the  same  for  four  voyages,  within  the  period  of  three  years. 
to  commence  from  the  first  day  of  January,  1615,  or  sooner, 


NEW-YORK.  39 

without  it  being  permitted,  directly  or  indirectly,  to  any  one 
else  to  sail,  to  frequent,  or  navigate,  out  of  the  United  Neth- 
erlands, those  newly  discovered  lands,  havens,  or  places, 
within  the  space  of  three  years,  as  above,  on  penalty  of  the 
confiscation  of  the  vessel  and  cargo,  besides  a  fine  of  fifty 
thousand  Netherlands  ducats,  for  the  benefit  of  said  discov- 
erers. Provided,  however,  that  by  these  presents  We  do  not 
intend  to  prejudice  or  diminish  any  of  our  former  grants  and 
concessions;  and  it  is  also  our  intention  that  if  any  disputes 
or  differences  should  arise  from  these  our  concessions,  that 
they  shall  be  decided  by  ourselves. 

"  WE,  therefore,  expressly  command  all  governors,  justices, 
officers,  magistrates,  and  inhabitants,  of  the  aforesaid  United 
Netherlands,  that  they  allow  said  company  peacefully  and 
quietly  to  enjoy  the  whole  benefit  of  this  our  grant,  and  to 
interpose  no  difficulties  or  obstacles  to  the  welfare  of  the  same. 
Given  at  the  Hague,  under  our  seal,  paraph,  and  the  signa- 
ture of  our  Secretary,  on  the  llth  day  of  October,  1614." 
[Hoi.  Doc.  1.  39.  Alb.  Rec.  xxiv.  167.] 

Having  thus  secured  the  trade  of  this  region,  they  proceeded 
to  erect  a  trading  house  at  De  Riviere  van  den  Vorst,  at  Al- 
bany, and  also  on  the  southern  extremity  of  Manhattan 
Island.  By  means  of  these  three  several  posts,  the  trade  of 
both  the  Troquois  and  Algonquin-Lenapes  was  ensured. 

On  the  first  of  January,  1618,  the  grant  to  the  New-Neth- 
erland  Company  expired  by  its  own  limitation.  In  the 
following  spring  the  breaking  up  of  the  ice  caused  so  much 
injury  to  the  fort  on  Castle  Island  that  the  Company  were 
obliged  to  abandon  it  and  retire  to  the  Norman's  Kill,  where 
their  agents  concluded  a  treaty  of  alliance  and  peace  with 
the  Iroquois.*  By  this  the  Dutch  secured  to  themselves  the 

*  The  Dutch  who  settled  New-Nethei'land,  now  New-York,  in  1609,  entered  into 
an  alliance  with  the  Five  Nations,  which  continued  without  any  breach  on  either 
side,  lill  the  English  gained  this  country.  The  Norman's  Kill  derives  its  present 
name  from  Andries  Bratt,  who  was  surnamed  "  De  Noonnan,"  or  Northman,  hav- 
ing been  a  native,  it  is  said,  of  Denmark.  Colden's  Hist,  of  the  Five  Nations,  3& 


40  GRANT  OF  TATROONSHIPS  IN 

Indian  trade,  and  the  Iroquois  the  means  of  maintaining  as- 
cendancy over  all  other  tribes  of  savages  in  North  America. 

In  June,  1621,  the  Dutch  West  India  Company  was  char- 
tered and  placed  under  the  management  of  Lords  Directors  ; 
who,  two  years  after,  sent  hither  a  command  to  take 
possession  of  the  settlement  at  New-Netherland.  Its  gov- 
ernment was  confided  to  a  council  consisting  of  PIETER 
BYLVELT,  JACOB  ELBERTSEN  WISSINK,  JAN  JANSEN  BROU- 
WER,  SYMENDERCKSENPOS  and  REYNERT  HARMENSSEN, 
who  were  invested  with  supreme  executive  and  legislative 
authority  over  the  colony.  Although  claiming  the  pre- 
emption of  the  soil,  the  rights  of  the  Indians  to  the  possession 
thereof  remained  unextinguished.  The  Dutch,  therefore, 
occupied  Manhattan  Island  only  by  sufferance.  But  as  ti 
permanent  settlement  was  contemplated,  it  became  necessary 
to  take  some  order  upon  the  subject.  At  length  a  purchase 
of  the  Island,  estimated  to  contain  twenty-two  thousand 
acres,  was  effected,  at  the  price  of  sixty  guilders,  or  twenty- 
four  dollars. 

This  event  occurred  in  1626 ;  and  concurrently  therewith 
Staten  Island,  and  some  other  places  in  that  vicinity,  were 
purchased  by  the  Dutch  General  and  Council,  who  thereupon 
erected  a  block  house  and  palisade  at  the  southern  extremity 
of  Manhattan  Island,  which  received  the  appellation  of  Fort 
Amsterdam,  and  became  the  seat  of  government  and  capital 
of  New-Netherland.  The  next  document  affecting  the  title 
to  lands  in  New- York,  is  the  grant  of  the  West  India  Com- 
pany. 


NEW-YORK.  .          41 

V.  FREEDOMS  AND  EXEMPTIONS  GRANTED  BY  THE  AS- 
SEMBLY OF  THE  XIX.  OF  THE  PRIVILEGED  WEST  INDIA 
COMPANY,  TO  THOSE  PLANTING  COLONIES  IN  NEW-NETH- 
ERLAND,  IN  1629. 

"  I.  Such  members  of  the  said  company  as  may  be  in- 
clined to  settle  any  colonie  in  New  Netherland,  shall  be 
permitted  to  send  in  the  ships  of  this  company  going  thith- 
er, three  or  four  persons  to  inspect  the  situation  of  the 
country,  provided  that  they,  with  the  officers  and  ship's 
company,  swear  to  the  articles,  so  far  as  they  relate  to  them, 
and  pay  for  provisions  and  for  passage,  going  and  coming, 
six  stuyvers  per  diem  ;  and  such  as  desire  to  eat  in  the 
cabin,  twelve  stuyvers,  and  to  be  subordinate  and  give  as- 
sistance like  others,  in  cases  offensive  and  defensive ;  and  if 
any  ships  be  taken  from  the  enemy,  they  shall  receive,  pro 
rata,  their  proportions  with  the  ship's  company,  each  ac- 
cording to  his  quality ;  that  is  to  say,  the  colonists  eating 
out  of  the  cabin  shall  be  rated  with  the  sailors,  and  those 
who  eat  in  the  cabin  with  those  of  the  company's  men  who 
eat  at  table  and  receive  the  lowest  wages. 

"  II.  Though,  in  this  respect,  shall  be  preferred  such  persons 
as  have  first  appeared  and  desired  the  same  from  the  company. 

"  III.  All  such  shall  be  acknowledged  Patroons  of  New 
Netherland  who  shall,  within  the  space  of  four  years  next 
after  they  have  given  notice  to  any  of  the  Chambers  of  the 
Company  here,  or  to  the  Commander  or  Council  there,  un- 
dertake to  plant  a  colonie  there  of  fifty  souls,  upwards  of 
fifteen  years  old ;  one  fourth  part  within  one  year,  and 
within  three  years  after  the  sending  of  the  first,  making  to- 
gether four  years,  the  remainder,  to  the  full  number  of  fifty 
persons,  to  be  shipped  from  hence,  on  pain,  in  case  of  willful 
neglect,  of  being  deprived  of  the  privileges  obtained  ;  but  it 
is  to  be  observed  that  the  company  reserve  the  island  of  the 
Manhattes  to  themselves. 
2* 


42  GRANT  OF  PATROONSHIPS  IN 

11 IV.  They  shall,  from  the  time  they  make  known  the 
situation  of  the  places  where  they  propose  to  settle  colonies, 
have  the  preference  to  all  others  of  the  absolute  property  of 
such  knds  as  they  have  there  chosen  ;  hut  in  case  the  sit- 
uation should  not  afterwards  please  them,  or  that  they  should 
have  been  mistaken  as  to  the  quality  of  the  land,  they  may, 
after  remonstrating  concerning  the  same  to  the  Commander 
and  Council  there,  be  at  liberty  to  choose  another  place. 

"  V.  The  Patroons,  by  virtue  of  their  power,  shall  and 
may  be  permitted,  at  such  places  as  they  shall  settle  their 
colonies,  to  extend  their  limits  four  miles*  along  the  shore, 
that  is,  on  one  side  of  a  navigable  river,  or  two  milest  on 
each  side  of  a  river,  and  so  far  into  the  country  as  the  situa- 
tion of  the  occupiers  will  permit ;  provided  and  conditioned 
that  the  company  keep  to  themselves  the  lands  lying  and 
remaining  between  the  limits  of  colonies,  to  dispose  thereof, 
when  and  at  such  time  as  they  shall  think  proper,  in  such 
manner  that  no  person  shall  be  allowed  to  come  within 
seven  or  eight  milest  of  them  without  their  consent,  unless 
the  situation  of  the  land  thereabout  were  such,  that  the 
Commander  and  Council,  for  good  reasons,  should  order 
otherwise ;  always  observing  that  the  first  occupiers  are  not 
to  be  prejudiced  in  the  right  they  have  obtained,  other  than, 
unless  the  service  of  the  Company  should  require  it,  for  the 
building  of  fortifications,  or  something  of  that  sort :  remain- 
ing, moreover,  the  command  of  each  bay,  river,  or  island,  of 
the  first  settled  colonie,  under  the  supreme  jurisdiction  of 
their  High  Mightinesses  the  States  General,  and  the  Com- 
pany ;  but  that  on  the  next  colonies  being  settled  on  the 
same  river  or  island,  they  may,  in  conjunction  with  the 
first,  appoint  one  or  more  council,  in  order  to  consider  what 
may  be  necessary  for  the  prosperity  of  the  colonies  on  the 
said  river  and  island. 

*  Equal  to  sixteen  English  miles.  t  Or  eight  English  miles. 

$  Thirty-two  English  miles. 


NEW-YORK.  43 

•''  VI.  They  shall  forever  possess  and  enjoy  all  the  lands 
lying  within  the  aforesaid  limits,  tog-ether  with  the  fruits, 
rights,  minerals,  rivers,  and  fountains  thereof;  as  also  the 
chief  command  and  lower  jurisdictions,  fishing,  fowling,  and 
grinding,  to  the  exclusion  of  all  others,  to  be  holden  from 
the  Company  as  a  perpetual  inheritance,  without  it  ever  de- 
volving again  to  the  Company,  and  in  case  it  should  de- 
volve, to  be  redeemed  and  repossessed  with  twenty  guilders 
per  colonie,  to  be  paid  to  this  Company  at  the  Chamber  here, 
or  to  their  commander  there,  within  a  year  and  six  weeks 
after  the  same  occurs,  each  at  the  Chambsr  where  he  origin- 
ally sailed  from  ;  and  further,  no  person  or  persons  whatso- 
ever shall  be  privileged  to  fish  and  hunt  but  the  Patroons 
and  such  as  they  shall  permit ;  and  in  case  any  one  should 
in  time  prosper  so  much  as  to  found  one  or  more  cities,  he 
shall  have  power  and  authority  to  establish  officers  and 
magistrates  there,  and  to  make  use  of  the  title  of  his  colo- 
nie, according  to  his  pleasure  and  to  the  quality  of  the  persons. 
"  VII.  There  shall  likewise  be  granted  to  all  Patroons  who 
shall  desire  the  same,  venia  testandi,  or  liberty  to  dispose  of 
their  aforesaid  heritage,  by  testament. 

<(  VIII.  The  Patroons  may,  if  they  think  proper,  make  use 
of  all  lands,  rivers  and  woods,  lying  contiguous  to  them,  for 
and  during  so  long  a  time  as  this  Company  shall  grant  them 
to  other  patroons  or  particulars. 

"IX.  Those  who  shall  send  persons  over  to  settle  colo- 
nies shall  furnish  them  with  proper  instructions,  in  order 
that  they  may  be  ruled  and  governed  conformably  to  the 
rule  of  government  made,  or  to  be  made,  by  the  Assembly  of 
the  Nineteen,  as  well  in  the  political  as  in  the  judicial  gov- 
ernment ;  which  they  shall  be  obliged  first  to  lay  before  the 
directors  of  the  respective  colleges. 

"X.  The  Patroons  and  Colonists  shall  be  privileged  to 
send  their  people  and  effects  thither,  in  ships  belonging  to 
the  Company,  provided  they  take  the  oath,  arid  pay  to  the 


44  GRANT  OF  PATROONSHII'S  JN 

Company  for  bringing  over  the  people  as  mentioned  in  the 
first  article  ;  and  for  freight  of  the  goods  five  per  cent,  ready 
money,  to  be  reckoned  on  the,  prime  cost  of  the  goods  here ; 
in  which  is,  however,  not  to  be  included  such  creatures  and 
other  implements  as  are  necessary  for  the  cultivation  and 
improvement  of  the  lands,  which  the  Company  are  to  carry 
over  without  any  reward,  if  there  is  room  in  their  ships. 
But  the  Patroons  shall,  at  their  own  expense,  provide  and 
make  places  for  them,  together  with  every  thing  necessary 
for  the  support  of  the  creatures. 

"  XL  In  case  it  should  not  suit  the  Company  to  send  any 
ships,  or  in  those  going  there  should  be  no  room,  then  the 
said  Patroons,  after  having  communicated  their  intentions, 
and  after  having  obtained  consent  from  the  Company  in 
writing,  may  send  their  own  ships  or  vessels  thither :  pro- 
vided, that  in  going  or  coming  they  go  not  out  of  their  or- 
dinary course  ;  giving  security  to  the  Company  for  the 
same,  and  taking  on  board  an  assistant,  to  be  victualed  by 
the  Patroons,  and  paid  his  monthly  wages  by  the  Company  ; 
on  pain,  for  doing  the  contrary,  of  forfeiting  all  the  right  and 
property  they  have  obtained  to  the  colonie. 

"  XII.  Inasmuch  as  it  is  intended  to  people  the  island  of 
the  Manhattes  first,  all  fruits  and  wares  that  are  produced 
on  the  lands  situate  on  the  North  River,  and  lying  therea- 
bout, shall,  for  the  present,  be  brought  there  before  they  may 
be  sent  elsewhere  :  excepting  such  as  are  from  their  nature 
unnecessary  there,  or  such  as  cannot,  without  great  loss  to 
the  owner  thereof,  be  brought  there ;  in  which  case  the 
owners  thereof  shall  be  obliged  to  give  timely  notice  in 
writing  of  the  difficulty  attending  the  same  to  the  Company 
here,  or  the  commander  and  Council  there,  that  the  same 
may  be  remedied  as  the  necessity  thereof  shall  be  found  to 
require. 

"  XIII.  All  the  Patroons  of  colonies  in  New  Netherland, 
and  of  colonies  on  the  island  of  Manhattes,  shall  be  at  liber- 


NEW-YORK.  45 

ty  to  sail  and  traffic  all  along  the  coast  from  Florida  to  Ter- 
ra Neuf,  provided  that  they  do  again  return  with  all  such 
goods  as  they  shall  get  in  trade  to  the  island  of  Manhattes, 
and  pay  five  par  cent,  for  recognition  to  the  Company,  in 
order,  if  possible,  that  after  the  necessary  inventory  of  the 
goods  shipped  be  taken,  the  same  may  be  sent  hither.  And 
if  it  should  so  happen  that  they  could  not  return,  by  contra- 
ry streams  or  otherwise,  they  shall,  in  such  case,  not  be  per- 
mitted to  bring  such  goods  to  any  other  place  but  to  these 
dominions,  in  order  that  under  the  inspection  of  the  directors 
of  the  place  where  they  may  arrive  they  may  be  unladen, 
an  inventory  thereof  made,  and  the  aforesaid  recognition  of 
five  per  cent,  paid  to  the  Company  here,  on  pain,  if  they  do 
the  contrary,  of  the  forteiture  of  their  goods  so  trafficed  for, 
or  the  real  value  thereof. 

••  XIV.  In  case  the  ships  of  the  Patroons,  in  going  to,  or 
coming  from,  or  sailing  on  the  coast  from  Florida  to  Terra 
Neuf,  and  no  further,  without  our  grant,  should  overpower 
any  of  the  prizes  of  the  enemy,  they  shall  be  obliged  to 
bring,  or  cause  to  be  brought,  such  prize  to  the  college  of 
the  place  ^ from  whence  they  sailed  out,  in  order  to  be  re- 
warded by  them ;  the  Company  shall  keep  the  one-third 
part  thereof,  and  the  remaining  two-thirds  shall  belong  to 
them,  in  consideration  of  the  cost  and  risk  they  have  been 
at,  all  according  to  the  orders  of  the  Company. 

"  XV.  It  shall  be  also  free  for  the  aforesaid  Patroons  to 
traffic  and  trade  all  along  the  coast  of  New  Netherland  and 
places  circumjacent,  with  such  goods  as  are  consumed  there, 
arid  receive  in  return  for  them,  all  sorts  of  merchandise  that 
may  be  had  there,  except  beavers,  otters,  minks,  and  all  sorts 
of  peltry,  which  trade  the  company  reserve  to  themselves. 
But  the  same  shall  be  permitted  at  such  places  where  the 
company  have  no  factories,  conditioned  that  such  traders 
shall  be  obliged  to  bring  all  the  peltry  they  can  procure  to 
the  island  of  Manhattes,  in  case  it  may  be,  at  any  rate,  prac- 


46  GRANT  OF  PATROONSHIPR  IN 

ticable,  and  there  deliver  to  the  Director,  to  be  by  him  shipped 
hither  with  the  ships  and  goods ;  or,  if  they  should  come 
here,  without  going-  there,  then  to  give  notice  thereof  to  the 
company,  that  a  proper  account  thereof  may  be  taken,  in 
order  that  they  may  pay  to  the  company  one  guilder  for  each 
merchantable  beaver  and  otter  skin  ;  the  property,  risk,  and 
all  other  charges,  remaining  on  account  of  the  Patroons,  or 
owners. 

"  XVI.  All  coarse  wares  that  the  colonists  of  the  Patroons 
there  shall  consume,  such  as  pitch,  tar,  weed-ashes,  wood, 
grain,  fish,  salt,  hearthstone,  and  such  like  things,  shall  be 
brought  over  in  the  company's  ships,  at  the  rate  of  eighteen 
guilders  ($7  20)  per  last ;  four  thousand  weight  to  be  ac- 
counted a  last,  and  the  company's  ship's  crew  shall  be  obliged 
to  wheel  and  bring  the  salt  on  board,  whereof  ten  lasts  make 
a  hundred.  And  in  case  of  the  want  of  ships,  or  room  in 
the  ships,  they  may  order  it  over  at  their  own  cost,  in  ships 
of  their  own,  and  enjoy  in  these  dominions  such  liberties  and 
benefits  as  the  company  have  granted  ;  but  in  either  case 
they  shall  be  obliged  to  pay,  over  and  above  the  recognition 
of  five  per  cent.,  eighteen  guilders  for  each  hundred  of  salt 
that  is  carried  over  in  the  company's  ships. 

"XVII.  For  all  wares  which  are  not  mentioned  in  the  fore- 
going article,  and  which  are  not  carried  by  the  last,  there 
shall  be  paid  one  dollar  for  each  hundred  pounds  weight ; 
and  for  wines,  brandies,  verjuice,  and  vinegar,  there  shall  be 
paid  eighteen  guilders  per  cask. 

"XVIII.  The  company  promises'the  colonists  of  the  Pa- 
troons, that  they  shall  be  free  from  customs,  taxes,  excise, 
imposts,  or  any  other  contributions,  for  the  space  of  ten  years  ; 
and  after  the  expiration  of  the  said  ten  years  at  the  highest, 
such  customs  as  the  goods  are  taxable  with  here  for  the 
present. 

"  XIX.  They  will  not  take  from  the  service  of  the  Patroons 
any  of  their  colonists,  either  man  or  woman,  son  or  daugh- 


NBW-VORK.  47 

ter.  man-senfant  or  maid-servant ;  and  though  any  of  them 
should  desire  the  same,  they  will  not  receive  them,  much 
less  permit  them  to  leave  their  Patroons,  and  enter  into  the 
service  of  another,  unless  on  consent  obtained  from  their  Pa- 
troons  in  writing  ;  and  this  for  and  during  so  many  years  as 
they  are  bound  to  their  Patroons ;  after  the  expiration  whereof, 
it  shall  be  in  the  power  of  the  Patroons  to  send  hither  all  such 
colonists  as  will  not  continue  in  their  service,  and  until  then 
shall  not  enjoy  their  liberty.  And  all  such  colonists  as  shall 
leave  the  service  of  his  Patroon,  and  enter  into  the  service  of 
another,  or  shall,  contrary  to  his  contract,  leave  his  service ; 
we  promise  to  do  everything  in  our  power  to  apprehend  and 
deliver  the  same  into  the  hands  of  his  Patroon,  or  attorney, 
that  he  may  be  proceeded  against,  according  to  the  customs 
of  this  country,  as  occasion  may  require. 

"  XX.  From  all  judgments  given  by  the  courts  of  the  Pa- 
troons for  upwards  of  fifty  guilders,  ($20.)  there  may  be  an 
appeal  to  the  company's  commander  and  council  in  New 
Xethorland. 

"  XXI.  In  regard  to  such  private  persons  as  on  their  own 
account,  or  others  in  the  service  of  their  masters  here,  (not 
enjoying  thr  same  privileges  as  the  Patroons,)  shall  be  in- 
clined to  go  thither  and  settle,  they  shall,  with  the  approba- 
tion of  the  Director  and  Council  there,  be  at  liberty  to  take 
up  as  much  land,  and  take  possession  thereof,  as  they  shall 
be  able  properly  to  improve,  and  shall  enjoy  the  same  in  full 
property  either  for  themselves  or  masters. 

"  XXII.  They  shall  have  free  liberty  of  hunting  and  fowl- 
ing, as  well  by  water  as  by  land,  generally,  and  in  public  and 
private  woods  and  rivers,  about  their  colonies,  according  to 
the  orders  of  the  Director  and  Council. 

"  XXIII.  Whosoever,  whether  colonists  of  Patroons  for 
their  patroons,  or  free  persons  for  themselves,  or  other  par- 
ticulars for  their  masters,  shall  discover  any  shores,  bays,  or 
other  fit  places  for  erecting  fisheries,  or  the  making  of  salt 


48  GRANT  OF  PATROONSHIPS  IN 

ponds,  they  may  take  possession  thereof,  and  begin  to  work 
on  them  in  their  own  absolute  property,  to  the  exclusion  of 
all  others.  And  it  is  consented  to  that  the  Patroons  of  colo- 
nists may  send  ships  along  the  coast  of  New  Netherland,  on 
the  cod  fishery,  and  with  the  fish  they  catch  to  trade  to  Italy, 
or  other  neutral  countries,  paying  in  such  cases  to  the  com- 
pany for  recognition,  six  guilders  ($2  40)  per  last ;  and  if 
they  should  come  with  their  lading  hither,  they  shall  be  at 
liberty  to  proceed  to  Italy,  though  they  shall  not,  under  pre- 
text of  this  consent,  or  from  the  company,  carry  any  goods 
there,  on  pain  of  arbitrary  punishment;  and  it  remaining  in 
the  breast  of  the  company  to  put  a  supercargo  on  board  each 
ship,  as  in  the  eleventh  article. 

"  XXIV.  In  case  any  of  the  colonists  should,  by  his  in- 
dustry and  diligence,  discover  any  minerals,  precious  stones, 
crystals,  marbles,  or  such  like,  or  any  pearl  fishery,  the  same 
shall  be  and  remain  the  property  of  the  Patroon  or  Patroons 
of  such  colony;  giving  and  ordering  the  discoverer  such 
premium  as  the  Patroon  shall  beforehand  have  stipulated 
with  such  colonist  by  contract.  And  the  Patroons  shall  be 
exempt  from  all  recognition  to  the  company  for  the  term  of 
eight  years,  and  pay  only  for  freight,  to  bring  them  over, 
two  per  cent.,  and  after  the  expiration  of  the  aforesaid  eight 
years,  for  recognition  and  freight,  the  one-eighth  part  of  what 
the  same  may  be  worth. 

"  XXV.  The  company  will  take  all  the  colonists,  as  well 
free  as  those  that  are  in  service,  under  their  protection,  and 
the  same  against  all  outlandish  and  inlandish  wars  and 
powers,  with  the  forces  they  have  there,  as  much  as  lies  in 
their  power,  defend. 

"  XXVI.  Whosoever  shall  settle  any  colonie  out  of  the 
limits  of  the  Manhattes  Island,  shall  be  obliged  to  satisfy  the 
Indians  for  the  land  they  shall  settle  upon,  and  they  may 
extend  or  enlarge  the  limits  of  their  colonies  if  they  settle  a 
proportionate  number  of  colonists  thereon. 


NEW-YORK.  49 

"  XXVII.  The  Patroons  and  colonists  shall  in  particular, 
and  in  the  speediest  manner,  endeavor  to  find  out  ways  and 
means  whereby  they  may  support  a  minister  and  schoolmas- 
ter, that  thus  the  service  of  God  and  zeal  for  religion  may 
not  grow  cool,  and  be  neglected  among  them  ;  and  that  they 
do,  for  the  first,  procure  a  comforter  of  the  sick  there. 

"  XXVIII.  The  colonies  that  shall  happen  to  lie  on  the 
respective  rivers  or  islands  (that  is  to  say,  each  river  or  island 
for  itself)  shall  be  at  liberty  to  appoint  a  deputy,  who  shall 
give  information  to  the  commander  and  council  of  that  West- 
ern quarter,  of  all  things  relating  to  his  colonie,  and  who  are 
to  further  matters  relating  thereto,  of  which  deputies  there 
shall  be  one  altered,  or  changed,  in  every  two  years  ;  and  all 
colonies  shall  be  obliged,  at  least  once  in  every  twelve  months, 
to  make  exact  report  of  their  colonie  and  lands  thereabout, 
to  the  commander  and  council  there,  in  order  to  be  transmit- 
ted hither. 

"XXIX.  The  colonists  shall  not  be  permitted  to  make 
any  woollen,  linen,  or  cotton  cloth,  nor  weave  any  other  stuffs 
there,  on  pain  of  being  banished,  and  as  perjurers  to  be  arbi- 
trarily punished. 

"  XXX,  The  company  will  use  their  endeavors  to  supply 
the  colonists  with  as  many  blacks  as  they  conveniently  can, 
on  the  conditions  hereafter  to  be  made ;  in  such  manner, 
however,  that  they  shall  not  be  bound  to  do  it  for  a  longer 
time  than  they  shall  think  proper. 

"  XXXI.  The  company  promises  to  finish  the  fort  on  the 
island  of  the  Manhatlcs,  and  to  put  it  in  a  posture  of  defence 
without  delay."  [Holland  Documents,  Vol.  2:  98,99.] 

Under  this  grant  the  feudal  tenures  of  Europe  were  trans- 
ferred to  our  soil.  "  Colonies,"  in  the  sense  in  which  the 
term  is  used  in  the  above  grant,  were  but  another  name  for 
"lordships"  and  "  seigneuries,"  which  the  French  were 
cotemporaneously  establishing  in  Canada,  where  the  ap^ 
pendages  of  high  and  low  jurisdiction,  mutation  fines,  mo* 
3 


50  PURCHASES  IN 

nopolies,  water  courses,  hunting,  fishing,  fowling  and  grind- 
ing, now  existing  in  the  charter  of  several  patroons,  form  a 
part  of  the  civil  law  of  the  country. 

vi.  THE  PATROONS'  PURCHASES,  AND  THE  RATIFICA- 
TION THEREOF. 

It  appears  from  the  accredited  history  of  that  day,*  that 
upon  the  publication  of  the  grant  just  above  cited,  it  was 
found  that  several  of  the  Directors  of  the  West  India  Com- 
pany had  individually  put  themselves  in  a  condition  to  se- 
cure a  share  of  the  privileges  and  advantages  which  that 
document  held  out  to  capitalists.  It  is  alledged  that  seven 
days  before  it  was  published,  the  agents  of  SAMUEL  GOODYN 
and  SAMUEL  BLOEMMART  bought  from  the  native  propri- 
etors the  right  of  possession  of  an  immense  tract  of  land  on 
what  was  then  called  South  River  Bay,  and  that  their  pur- 
chase was  ratified  at  Fort  Amsterdam,  the  following  year. 

In  the  spring  of  1630,  the  Sannahagog  tract,  so  called, 
was  purchased  of  the  natives  by  the  agents  of  KILIAN  VAN 
RENSSELAER,!  another  Director  of  the  West  India  Company. 
This  purchase  was  situated  on  the  west  side  of  the  North 
River,  extending  from  Beeren  Island  to  Smacx  Island,  and 
being  "  two  days'  journie  in  breadth." 

Soon  after  the  Sannahagog  purchase,  the  same  Director 
purchased  the  lands  lying  north  and  south  of  Fort  Orange, 
and  extending  to  Moenimines  Castle,  at  the  mouth  of  the 
Mohawk;  and  also  a  tract  on  the  east  side  of  the  river,  from 
opposite  Castle  Island,  to  a  point  facing  Fort  Orange.  These 
several  conveyances  are  said  to  have  been  ratified  by  the 

*  O'Callaghan. 

t  Kilian  Van  Rensselaer  was  a  merchant  in  Amsterdam,  and  one  of  the  first  Pa- 
troons in  the  State.  He  was  the  thirteenth  descendant  from  HENKY  WOT.TERS 
VAN  RENSSELAER.  His  first  wife  was  Hellegonda  Van  Bylet,  and  his  second  was 
Anna  Van  Wcly.  Johannes,  the  eldest  son  by  the  first  wife,  succeeded  his  father 
as  Patroon;  and  Jeremias,  Jan  Baptiste,  and  Rykert,  sons  by  the  second  wife,  in 
succession  were  Directors  of  "the  colonic."  [See  Holland  Documents  in  tho 
Secretary  of  State's  Office,  at  Albany,  for  the  Patents.] 


NEW-YORK.  51 

Director  General  and  Council  of  New-Netherland?  who 
sealed  their  ratification  on  the  same  day  that  the  Charter  of 
1629  was  proclaimed  at  Fort  Amsterdam.*  The  intervening 
tract  was  purchased  by  Van  Rensselaer  in  1637,  in  exchange 
for  goods  and  trinkets. 

The  several  purchases  embrace  a  tract  forty-eight  miles 
long  and  twenty-four  broad,  and  estimated  to  contain  over 
seven  hundred  thousand  acres  of  land.  The  tract  is  now 
embraced  within  the  counties  of  Albany,  Rensselaer,  and 
Columbia.! 

It  is  believed  that  the  next  purchase  was  made  by  another 
Director  named  MICHAEL  PAAUN.  His  tract  was  situate  on 
the  east  side  of  the  river  Mauritius,  and  included  some  part 
of  Staten  Island,  and  land  on  the  Jersey  shore. 

The  colonies,  at  first,  increased  in  population  but  slowly; 
yet,  as  it  was  soon  established  "  that  children  could  be  raised 
in  New-Netherland,''  and  as  the  charter  of  1629  provided 
that  every  colony  should,  within  four  years  after  its  estab- 
lishment, contain  at  least  fifty  persons  over  fifteen  years  of 
age,  that  condition  was  complied  with.  They  remained 
for  a  number  of  years,  however,  a  commercial  rather  than  an 
agricultural  possession  of  the  West  India  Company. 

The  early  settlers  upon  the  colonial  grants  were  sent 

*  O'Callachan. 

t  Copies  of  these  Deeds  are  in  the  Book  <»f  Patents  GG.,  13,  14,  15,  16, 
"23,  24,  25,  26,  and  :I!M»  among  the  Holland  Documents.  Those  who  have  studied 
thr<e  Deeds,  say,  that  much  contusion  exi-ts  concerning  land  marks  and  dates.  It. 
is  s;iid  that  when  application  \vas  subsequently  made  to  the  Duke  of  York,  in  1678, 
for  a  warrant  to  erect  the  colmiie  into  a  manor,  the  parties  interested  experienced 
great  trouble  from  the  confusion.  As  these  grants  were  subsequently  confirmed  by 
the  Duke  of  York,  and  reserved  to  the  grantees  in  the  Constitution  of  1777,  they 
have  remained  unimpaired,  and  the  land  suffered  to  descend  to  the  heirs  of  the 
original  Patroon.  The  tenants  upon  this,  as  well  as  other  manors  in  the  State,  have 
become  dissatisfied  with  the  tenure  and  the  exactions  contained  in  their  leases,  and, 
at  times,  have  resisted  officers  in  the  collection  of  rent.  Although  the  Legislature 
has  been  repeatedly  memorialized  to  relieve  the  difficulty  complained  of,  no  remedy 
has  yet  been  devised  or  found. 


52  PURCHASES  IN 

hither  by  the  patroons,  who  soon  after  furnished  the  tenants 
with  stock  and  farming  utensils  necessary  for  a  beginning, 
and  in  a  few  instances,  comfortable  farm-houses  were  erect- 
ed for  their  comfort  and  convenience. 

In  1645,  THOMAS  FFARRINGTON,  JOHN  TOWNSEND, 
WILLIAM  LAWRENCE,  ROBERT  FURMAN,  and  others,  made 
a  purchase  of  the  natives,  and  obtained  a  patent  for  sixteen 
thousand  acres  of  land,  to  the  east  of  Mespath,  and  the  fol- 
lowing year  two  other  grants  were  made — one,  of  a  large 
tract  about  Katskill,  to  Cornelis  Van  Slyck,  of  "  Breuckelen,"* 

*  See  Book  GG  of  Dutch  Patents,  157,  translation  363.  As  a  specimen  of  these 
documents,  this  grant  is  given  entire  as  follows : 

"WE,  Willem  Kicft,  Director-general,  and  council,  on  behalf  of  the  High  and 
Mighty  Lords  States  General  of  the  United  Netherlands,  His  Highness  of  Orange, 
and  the  noble  Lords  Directors  of  the  Privileged  West  India  Company,  residing  in 
New  Netherland:  To  all  who  shall  sec  or  hear  these  presents  read,  Health. 
Whereas  Cornelis  Antonissen,  [Van  Slyck]]  of  Breuckelen,  hath  appeared  brfore 
Us,  and  with  his  associates  requested  permission  to  settle  in  free  possession  the 
land  of  Katskill  lying  on  the  River  Mauritius,  there  to  plant  with  his  associates  a 
Colonie,  which  he  hath  promised  to  do,  according  to  the  freedoms  and  exemptions 
of  New  Netherland:  WE,  therefore,  considering  the  great  service  which  the  afore- 
said Cornelis  Antonissen  hath  conferred  on  this  country,  as  well  in  the  making  of 
peace  as  in  the  ransoming  of  prisoners,  and  it  being  proper  that  such  notorious 
services  should  not  remain  unacknowledged,  We  have,  as  Director  and  Council, 
conceded  and  granted  to  the  aforesaid  Coi'nelis  Antonissen,  the  above-mentioned 
land  of  the  Katskill,  to  plant  there  a  Colonie,  within  the  time  therefor  enacted,  and 
in  the  order  appointed,  or  to  be  appointed,  by  the  Noble  Lords  Majors.  Where- 
fore, WE,  in  the  quality  aforesaid,  deed  and  transport  in  a  true,  free,  and  perpetual 
possession,  to  the  said  Cornelis  Antonissen,  the  aforesaid  lands  of  the  Katskill, 
giving  him  full  power,  authority,  and  special  command,  to  enter  on,  cultivate,  and 
make  use  of  the  said  lands  in  the  same  manner  as  he  should  conclude  to  do  with 
his  other  patrimonial  estate,  without  our  in  any  manner,  in  quality  aforesaid,  having, 
reserving,  or  retaining  thereon  any  part,  action,  or  authority  in  the  least,  but  as  re- 
gards the  same,  desisting  from  all  henceforth  and  forever ;  promising  to  maintain 
this  transport  firmly,  inviolably,  and  irrevokably;  to  perform  and  to  fulfil  every  part 
thereof  under  the  penalty  of  answering  therefor  according  to  law,  without  art  or 
guile.  This  is  subscribed,  and  with  our  Seal  in  red  wax,  fully  and  perfectly  con- 
firmed. Done  in  Fort  Amsterdam,  in  New  Netherland,  this  22d  of  August,  of  the 
year  of  our  Lord  and  Savior  one  thousand  six  hundred  six  and  forty. 

[Signed,]  "  WILLEM  KIKFT. 

"By  order  of  the  noble  Director-general  and  council  of  N.  N. 

"  CORNELIS  VAN  TIENHOVEN,  Secretary." 


NEW-YORK. 


53 


and  the  other  of  a  large  tract  on  the  east  side  of  the  Hudson 
river,  about  sixteen  miles  above  New- Amsterdam. t 

As  years  rolled  apace,  several  other  valuable  and  extensive 
tracts  were  in  like  manner  purchased  of  the  natives,  and 
patents  therefor  obtained  of  the  government,  by  sundry 
persons  of  wealth,  who,  in  example  of  their  predecessors, 
reduced  the  same  into  colonies.  Under  these  grants  immense 
tracts  of  land  were  let,  and  the  same  are  yet  held  under  per- 
petual leases,  containing  quarter  sale  reservations  and  pre- 
emptions, by  tenants  who  regard  the  conditions  as  oppressive. 

Manorial  possessions  in  our  country  are  generally  deemed 
prejudicial  to  agriculture,  and  as  innovations  upon  the  re- 
publican system. 

In  the  course  of  events,  the  Dutch  became  involved  in 
difficulty  concerning  colonization,  which  resulted  in  a  sur- 
render of  their  possessions  here  to  the  English. 

VII.  CAPITULATION  TO  THE  ENGLISH  AT  THE  GOVERNOR'S 
BOWERY,  IN  NEW-AMSTERDAM,  AUGUST  27,  1664. 

"I.  WE  consent  that  the  States  General,  or  the  West 
Jitf/ia  Company,  shall  freely  injoy  all  Farms  and  Houses 
(except  such  as  are  in  the  forts)  and  that  within  six  months, 
they  shall  have  free  Liberty  to  transport  all  such  Arms  and 
Ammunition,  as  now  does  belong  to  them,  or  else  they  shall 
be  paid  for  them. 

"II.  All  Publique  Houses  shall  continue  for  the  Uses 
which  they  are  for. 

"III.  All  People  shall  still  continue  free  Denizens,  and 
shall  enjoy  their  Lands,  Houses,  Goods,  wheresoever  they 
are  within  this  Country,  and  dispose  of  them  as  they  please. 

"IV.  If  any  Inhabitant  have  a  Mind  to  remove  himself, 
he  shall  have  a  Year  and  six  Weeks  from  this  day,  to  remove 
himself,  Wife,  Children.  Servants,  Goods,  and  to  dispose  of 
his  Lands  here. 

t  Book  of  Patents,  1:  5G. 


54  CAPITULATION  OF 

"  V.  If  any  Officer  of  State,  or  Publique  Minister  of  State, 
have  a  Mind  to  go  for  England,  they  shall  be  transported 
Fraught  free,  in  his  Majesty's  Frigotts,  when  these  Frigotts 
shall  return  thither. 

"VI.  It  is  consented  to,  that  any  People  may  freely  come 
from  the  Netherlands,  and  plant  in  this  Colony,  and  that 
Dutch  Vessels  may  freely  come  hither,  and  any  of  the  Dutch 
may  freely  return  home,  or  send  any  Sort  of  Merchandize 
home,  in  Vessels  of  their  own  Country. 

"  VII.  All  Ships  from  the  Netherlands,  or  any  other  Place, 
and  Goods  therein,  shall  be  received  here,  and  sent  hence, 
after  the  manner  which  formerly  they  were,  before  our  com- 
ing hither,  for  six  Months  next  ensuing. 

"VIII.  The  Dutch  here  shall  enjoy  the  Liberty  of  their 
Consciences  in  divine  Worship  and  Church  Discipline. 

"IX.  No  Dutchman  here,  or  Dutch  Ship  here,  shall  upon 
any  occasion,  be  pressed  to  serve  in  War  against  any  Nation 
whatsoever. 

"X.  That  the  Townsmen  of  the  Manhattans,  shall  not 
have  any  Soldiers  quartered  upon  them,  without  being  satis- 
fied and  paid  for  them  by  their  Officers,  and  that  at  this 
present,  if  the  Fort  be  not  capable  of  lodging  all  the  Soldiers, 
then  the  Burgomasters,  by  his  Officers,  shall  appoint  some 
Houses  capable  to  receive  them. 

"XI.  The  Dutch  here  shall  enjoy  their  own  Customs 
concerning  their  Inheritances. 

"XII.  All  Publique  Writings  and  Records,  which  concern 
the  Inheritances  of  any  People,  or  the  Reglement  of  the 
Church  or  Poor,  or  Orphans,  shall  be  carefully  kept  by  those 
in  whose  Hands  now  they  are,  and  such  Writings  as  partic- 
ularly concern  the  States  General,  may  at  any  Time  be  sent 
to  them. 

"  XIII.  No  Judgment  that  has  passed  any  Judicature  here, 
shall  be  called  in  Question,  but  if  any  conceive  that  he  hath 
not  had  Justice  done  him,  if  he  apply  himself  to  the  States 


NEW-YORK.  55 

General,  the  other  Party  shall  be  bound  to  answer  for  the 
supposed  Injury. 

"XIV.  If  any  Dutch,  living  here,  shall  at  any  Time  de- 
sire to  travaile  or  traffique  into  England,  or  any  Place,  or 
Plantation,  in  Obedience  to  his  Majesty  of  England,  or  with 
the  Indians,  he  shall  have  (upon  his  Request  to  the  Gover- 
nor) a  Certificate  that  he  is  a  free  Denizen  of  this  Place,  and 
Liberty  to  do  so. 

"XV.  If  it  do  appeare,  that  there  is  a  publique  Engage- 
ment of  Debt,  by  the  Town  of  the  Manhattocs,  and  a  Way 
agreed  on  for  the  satisfying  of  that  Engagement,  it  is  agreed, 
that  the  same  Way  proposed  shall  go  on,  and  that  the  En- 
gagement shall  be  satisfied. 

"XVI.  All  inferior  Civil  Officers  and  Magistrates,  shall 
continue  as  now  they  are,  (if  they  please)  till  the  customary 
Time  of  new  Elections,  and  then  new  ones  to  be  chosen  by 
themselves,  provided  that  such  new  chosen  Magistrates  shall 
take  the  Oath  of  Allegiance  to  his  Majesty  of  England,  be- 
fore  thrv  <  liierupon  their  Office. 

"XVII.  All  Differences  of  Contracts  and  Bargains  made 
before  this  Day,  by  any  in  this  Country,  shall  be  determined 
according  to  the  Manner  of  the  Dutch. 

"XVIII.  If  it  do  appeare,  that  the  West-India  Company 
of  Amsterdam,  do  really  owe  any  Sums  of  Money  to  any 
Person  here,  it  is  agreed  that  Recognition,  and  other  Duties 
payable  by  Ships  going  for  the  Netherlands,  be  continued 
for  six  Months  longer. 

"XIX.  The  Officers  Military,  and  Soldiers,  shall  march 
out  with  their  Arms,  Drums  beating,  and  Colours  flying,  and 
lighted  Matches ;  and  if  any  of  them  will  plant,  they  shall 
have  fifty  Acres  of  Land  set  out  for  them ;  if  any  of  them 
will  serve  as  Servants,  they  shall  continue  with  all  Safety, 
and  become  free  Denizens  afterwards. 

"  XX.  If  at  any  Time  hereafter,  the  King  of  Great  Bri- 
tain, and  the  States  of  the  Netherlands  do  agree  that  this 


56  CAPITULATION  OF 

Place  and  Country  be  re-delivered  into  the  Hands  of  the  said 
States,  whensoever  his  Majestic  will  send  his  Commands  to 
re-deliver  it,  it  shall  immediately  be  done. 

"XXI.  That  the  Town  of  Manhattans  shall  choose 
Deputy es,  and  those  Deputy es  shall  have  free  Voyces  in  all 
publique  Affairs,  as  much  as  any  other  Deputyes. 

"XXII.  Those  who  have  any  Property  in  any  Houses  in 
the  Fort  of  Aurania,  shall,  (if  they  please)  slight  the  Forti- 
fications there,  and  then  enjoy  all  their  Houses,  as  all  People 
do  where  there  is  no  Fort. 

"XXIII.  If  there  be  any  Soldiers  that  will  go  into  Hol- 
land^ and  if  the  Company  of  West-India  in  Amsterdam,  or 
any  private  persons  here,  will  transport  them  into  Holland, 
then  they  shall  have  a  safe  Passport  from  Colonel  Richard 
Nicholls,  Deputy-Governor  under  his  Royal  Highness,  and 
the  other  Commissioners,  to  defend  the  Ships  that  shall  trans- 
port such  Soldiers,  and  all  the  Goods  in  them,  from  any 
Surprizal  or  Acts  of  Hostility,  to  be  done  by  any  of  his  Ma- 
jestie's  Ships  or  Subjects.  That  the  Copies  of  the  King's 
Grant  to  his  Royal  Highness,  and  the  Copy  of  his  Royal 
Highness's  Commission  to  Colonel  Richard  Nicholls,  testi- 
fied by  two  Commissioners  more,  and  Mr.  Winthrop,  to  be 
true  Copies,  shall  be  delivered  to  the  honourable  Mr.  Stuy- 
vesant,  the  present  Governor,  on  Monday  next,  by  Eight  of 
the  Clock  in  the  Morning,  at  the  Old  Miln,  and  these  Arti- 
cles consented  to,  and  signed  by  Colonel  Richard  Nicholls, 
Deputy-Governor  to  his  Royal  Highness,  and  that  within  two 
Hours  after  the  Fort  and  Town  called  New- Amsterdam, 
upon  the  Isle  of  Manhatoes,  shall  be  delivered  into  the  Hands 
of  the  said  Colonel  Richard  Nicholls,  by  the  Service  of  such 
as  shall  be  by  him  thereunto  deputed,  by  his  Hand  and 
Seal."  [Southwick  &  Go's  Laws  of  N.  Y.] 

The  above  capitulation  was  confirmed  by  the  peace  of  Bre- 
da. This  event  occurred  in  the  reign  of  the  Second  Charles, 
who  granted  the  same  to  his  brother,  the  Duke  of  York,  af- 


NEW-YORK.  57 

terwards  James  the  Second.  No  account  was  then  made  of 
the  Iroquois  country  west  of  the  Hudson.  An  extract  from 
that  regal  document  connects  the  history  of  land  titles  in 
New- York. 

VIII.     GRANT  OF  CHARLES  II.    TO  JAMES,  DUKE  OF  YORK. 

'•KNOW  YE,  that  we,  for  divers  good  causes,  &c.,  HAVE,  &c., 
and  by  these  presents,  &c..  Do  give  and  grant  unto  our  dear- 
est brother  JAMES,  DUKE  OF  YORK,  his  heirs  and  assigns,  all 
that  part  of  the  main  land  of  New-England,  beginning  at  a 
certain  place  called  or  known  by  the  name  of  St.  Croix,  next 
adjoining  to  New-Scotland,  in  America ;  and  from  thence 
extending  along  the  soa  coast  unto  a  certain  place  called 
Pamaque  or  Pemaquid,  and  so  up  the  river  thereof  to  the 
farthest  head  of  the  same  as  it  tendeth  Northward ;  and  ex- 
tending from  thence  to  the  river  of  Kimbequin,  and  so 
up  wards  by  the  shortest  course  to  the  river  Canada,  northward. 
And  also  all  that  Island  or  Islands  commonly  called  by  the 
several  name  or  names  of  Matowacks  or  Long-Island,  situate, 
lying  and  being  toward  the  West  of  Cape  Cod,  and  the  Narrow 
Higansetts,  abutting  upon  the  main  land  between  the  two 
rivers  there  called  or  known  by  the  several  names  of  Connec- 
ticut and  Hudson's  river,  together,  also  with  the  said  river 
called  Hudson's  river,  and  all  the  lands  from  the  west  side  of 
Connecticut  river  to  the  east  side  of  Delaware  Bay.  And 
also  all  those  several  Islands,  called  or  known  by  the  names 
of  Martin's  Vineyard  and  Nautukes,  or  otherwise  Nantuckett." 
Signed  and  sealed  with  the  royal  signet.  [Clarke's  Compi- 
lation of  1826,  80.] 

The  land  between  Pemaquid  and  St.  Croix  was,  by  the 
charter  of  1092,  annexed  to  Massachusetts,  and  a  portion  of 
that  contained  in  the  foregoing  grant,  situate  between  the 
Hudson  and  Delaware  rivers  is  embraced  with  New- Jersey. 
The  balance,  together  with  the  territory  of  the  Six  Nations, 
to  which  the  Duke  asserted  the  pre-emption  right,  remained 


58  THE  DUKE'S  GRANT  IN 

the  manor,  and  subsequently  became  the  province,  of  New- 
York  arid  dependencies  thereof.  In  1673  the  Dutch  retook 
the  colony,  but  relinquished  it  at  the  treaty  of  Westminster. 
Upon  the  accession  of  James  to  the  throne  of  England,  the 
grant  merged  in  the  crown. 

IX.  EXTRACT  FROM  A  GRANT  OF  PRIVILEGES  OF  HIS 
ROYAL  HIGHNESS  TO  THE  INHABITANTS  OF  NEW-YORK 
AND  ITS  DEPENDENCIES,  OCTOBER  30,  1683. 

"BE  IT  ENACTED,  &c.,  That  from  henceforth  no  lands 
within  this  province  shall  be  esteemed  or  accounted  a  chat- 
tel or  personal  estate,  but  an  ESTATE  OF  INHERITANCE, 
according  to  the  customs  and  practice  of  his  MAGESTY'S 
REALME  OF  ENGLAND  :  That  all  lands  and  heritages  with- 
in this  Province  and  Dependencies,  shall  be  free  from  all 
fines  and  licenses  upon  alienations,  and  from  all  heriotts, 
wardships,  liveries,  primier  seignis,  year,  day,  and  wast,  es- 
cheats and  forfeitures,  upon  the  death  of  parents  or  ancestors, 
naturall,  unnaturall,  casuall  or  judiciall,  and  that  forever ; 
cases  of  high  treason  only  excepted  :  That  all  wills  in  wri- 
ting attested  by  two  credible  witnesses,  shall  be  of  the  same 
force  to  convey  lands  as  other  conveyances  :  That  no  estate 
of  a  femme  covert  shall  be  conveyed  but  by  a  deed  acknow- 
ledged by  her  in  a  court  of  record,  the  woman  being  secretly 
examined  if  slice  doth  it  freely  without  threats  or  compul- 
sion of  her  husband :  And  that  shee  shall  be  invested  with 
dower,  and  may  tarry  in  the  chiefe  house  of  her  husband 
forty  days  after  his  death."  [Appendix  to  Van  Ness  & 
Wentworth's  Revision  of  State  Laws.] 

Although  the  original  and  ultimate  title  of  the  English 
Monarchs  was  acknowledged  for  nearly  a  century,  it  was 
repudiated  in  1776,  when  it  was  declared  to  be  a  sovereign 
State,  and  effectually  subverted,  in  1783,  by  the  treaty  of  Paris. 


KB  W.YORK.  59 

X.  FIRST  AND  SECOND  ARTICLES  OF  THE  TREATY  OF 
PARIS,  CONCLUDED  SEPTEMBER  3,  1783. 

"AiiT  1.  His  Britannic  Majesty  acknowledges  the  said 
United  States,  viz:  New  .Hampshire,  Massachusetts  Bay, 
Rhode  Island  and  Providence  Plantations,  Connecticut, 
New  York,  New  Jersey,  Pennsylvania,  Delaware,  Mary- 
land, Virginia,  North  Carolina,  South  Carolina,  and  Georgia, 
to  be  free,  sovereign,  and  independent  States ;  that  he  treats 
with  them  as  such  ;  and  for  himself,  his  heirs,  and  succes- 
sors, relinquishes  all  claims  to  the  government,  propriety, 
and  territorial  rights  of  the  same,  and  every  part  thereof. 

"ART.  2.  And  that  all  disputes  which  might  arise  in  fu- 
ture on  the  subject  of  the  boundaries  of  the  said  United 
States  may  be  prevented,  it  is  hereby  agreed  and  declared, 
that  the  following  are,  and  shall  be,  their  boundaries,  viz  : 
from  the  Northwest  angle  of  Nova  Scotia,  viz :  that  angle 
which  is  formed  by  a  line  drawn  due  North  from  the  source 
of  Saint  Croix  to  the  highlands,  along  the  said  highlands 
which  divide  those  rivers  that  empty  themselves  into  the 
river  St.  Lawrence  from  those  which  fall  into  the  Atlantic 
Ocean,  to  the  Northwesternmost  head  of  Connecticut  river ; 
thence,  down  along  the  middle  of  that  river,  to  the,  forty-fifth 
degree  of  North  latitude ;  from  thence,  by  a  line  due  West 
on  said  latitude,  until  it  strikes  the  river  Iroquois  or  Catara- 
quy  ;  thence,  along  the  middle  of  said  river,  into  Lake  Onta- 
rio, through  the  middle  of  said  lake,  until  it  strikes  the  com- 
munication by  water  between  that  lake  and  lake  Erie  ; 
thence,  along  the  middle  of  said  communication  into  lake 
Erie,  through  the  middle  of  said  lake,  until  it  arrives  at  the 
water  communication  between  that  lake  and  lake  Huron ; 
thence,  along  the  middle  of  said  water  communication,  into 
the  lake  Huron  ;  thence,  through  the  middle  of  said  lake,  to 
the  water  communication  between  that  lake  and  lake  Supe- 
rior ;  thence,  through  lake  Superior.  Northward  to  the  isles 


60  RELINQUISHMENT  OF 

Royal  and  Philipeaux,  to  the  Long  Lake ;  thence,  through 
the  middle  of  the  said  Long  Lake,  and  the  water  communi- 
cation between  it  and  the  Lake  of  the  Woods,  to  the  said 
lake  of  the  Woods ;  thence,  through  the  said  lake,  to  the 
most  Northwestern  point  thereof;  and,  from  thence,  on  a  due 
West  course,  to  the  river  Mississippi ;  thence,  by  a  line  to  be 
drawn  along  the  middle  of  the  said  river  Mississippi,  until  it 
shall  intersect  the  Northernmost  part  of  the  thirty-first  de- 
gree of  North  latitude.  South,  by  a  line  to  be  drawn  due 
East  from  the  determination  of  the  line  last  mentioned,  in 
the  latitude  of  thirty-one  degrees  North  of  the  equator,  to  the 
middle  of  the  river  Appalachicola  or  Catahouche ;  thence, 
along  the  middle  thereof,  to  its  junction  with  the  Flint  river; 
thence,  straight  to  the  head  of  St.  Mary's  river ;  and,  thence, 
down  along  the  middle  of  St.  Mary's  river,  to  the  Atlantic 
Ocean.  East,  by  a  line  to  be  drawn  "along  the  middle  of  the 
river  St.  Croix,  from  its  mouth,  in  the  bay  of  Fundy,  to  its 
source,  and,  from  its  source,  directly  North,  to  the  aforesaid 
highlands,  which  divide  the  rivers  that  fall  into  the  Atlantic 
Ocean  from  those  which  fall  into  the  river  St.  Lawrence, 
comprehending  all  islands  within  twenty  leagues  of  any  part 
of  the  shores  of  the  United  States,  and  lying  between  lines 
to  be  drawn  due  East  from  the  points  where  the  aforesaid 
boundaries  between  Nova  Scotia  on  the  one  part,  and  East 
Florida  on  the  other,  shall  respectively  touch  the  Bay  of 
Fundy  and  the  Atlantic  Ocean ;  excepting  such  islands  as 
now  are,  or  heretofore  have  been,  within  the  limits  of  the 
said  province  of  Nova  Scotia."* 

Upon  the  conclusion  of  the  treaty  of  Paris,  the  People  of 
this  State,  in  their  sovereign  capacity,  succeeded  to  all  the 
rights  over  the  soil  of  New- York  that  were  before  the  Revolu- 
tion vested  in  the  British  Crown;  yet  the  body  of  the  State 

*  The  United  States,  or  the  several  States,  have  a  clear  title  to  all  the  lands  de- 
scribed in  the  boundary  lines  of  the  treaty;  subject  only  to  the  Indian  right  of  occu- 
pancy. [8  Wheaton's  Reports,  543.] 


NEW-YORK.  61 

then  remained  in  the  possession  of  the  Six  Nations,  who  had 
not  surrendered  their  title  thereto. 

XI.  IROQ.UOIS  CESSIONS  AND  GRANTS  OF  LAND  IN  NEW- 
YORK.* 

At  Fort  Stanwix,  Oct.  22,  1784,  the  Six  NATIONS  held  a 
treaty  with  Wolcott,  Butler  and  Lee,  United  States  Commis- 
sioners, in  which  the  Oneidas  and  Tuscaroras  were  guaran- 
tied a  peaceable  possession  of  the  lands  whereon  they  were 
settled,  and  the  Indian  territory  limited  as  follows : 

"A  line  shall  be  drawn,  beginning  at  the  mouth  of  a  creek, 
about  four  miles  east  of  Niagara,  called  Oyonwayea,  or  John- 
ston's Landing  Place,  upon  the  lake,  named  by  the  Indians 
Oswego,  and  by  us  Ontario ;  from  thence  southerly  in  a 
direction  always  four  miles  east  of  the  carrying  path,  between 

*  The  courts  will  not  take  notice  of  any  title  to  land  not  derived  from  our  own 
Government.  [.Jackson  ex.  dem.  \\ 'inthrop,  vs.  Ingraham,  4.  John.  R.  163.] 

Discovei-y  constitutes  the  original  title  to  hinds  on  the  American  continent;  and 
the  title  thus  derived  \v;is  the  exclusive  ri-ht  of  acquiring  the  soil  from  the  natives, 
;ind  establishing  settlements  njion  it.  [tf  \Vheaton' s  U.  S.  Uej>.  543.] 

The  right  of  the  oriirinal  inhabitants  ha~  been  in  no  instance  disregarded.    [Idem.] 

The  Buropmai  respected  the  rights  of  the  natives  as  occupants,  but  asserted  the 
ultimate  dominion  to  be  in  themselves ;  and  claimed  thereby  the  power  to  grant  the 
soil  while  in  possession  of  the  natives.  [Idem.] 

The  United  States,  or  the  several  States,  have  a  clear  title  to  all  the  lands  within 
the  boundary  lines  described  in  the.  treaty  ;  subject  only  to  the  Indian  right  of  occu- 
pancy. [Idem.] 

These  rules  accord  to  the  Indian  the  right  of  possession  only.  They  deny  him 
title,  except  he  receive  that  title  from  this  Government  or  its  assigns.  [5  Cond.  Rep. 
515.] 

It  is  a  principle  of  universal  law,  that  if  an  uninhabited  country  be  discovered  by 
a  number  of  individuals  who  acknowledge  no  connection  with  and  own  no  allegiance 
to  any  Government  whatever,  the  country  becomes  the  property  of  the  discoverers, 
so  far  as  they  can  use  it.  [8  Wheaton's  U.  S.  Rep.  548.] 

Appropriation  of  land  by  the  Government,  is  nothing  more  or  less  than  setting  it 
apart  for  some  peculiar  use.  [13  Peters,  498.] 

The  U.  S.  Government  having  a  standing  right  of  pre-emption  to  lands  occupied 
by  Indian?,  it  is  competent  for  the  Government  to  transfer  that  right  by  special  or* 
general  acts  of  Congress.  [13  Peters,  436.] 


m  IROQUOIS  GRANTS  IN 

lake  Erie  and  Ontario,  to  the  mouth  of  Tehoseroron,  or  Buf- 
falo creek,  on  lake  Erie;  thence  south,  to  the  north  boundary 
of  the  State  of  Pennsylvania ;  thence  west,  to  the  end  of  the 
said  north  boundary;  thence  south,  along  the  west  boundary 
of  the  said  State,  to  the  river  Ohio ;  the  said  line  from  the 
mouth  of  the  Oyonwayea  to  the  Ohio,  shall  be  the  western 
boundary  of  the  lands  of  the  Six  Nations ;  so  that  the  Six 
Nations  shall,  and  do,  yield  to  the  United  States,  all  claims 
to  the  country  west  of  the  said  boundary;  and  then  they 
shall  be  secured  in  the  peaceful  possession  of  the  lands  they 
inhabit,  east  and  north  of  the  same,  reserving  only  six  miles 
square,  round  the  fort  of  Oswego,  to  the  United  States,  for 
the  support  of  the  same." 

At  Fort  Herkimer,  June  28,  1785,  the  ONEIDAS  and  Tus- 
CARORAS,  in  consideration  of  $11,500,  conveyed  :  "  All  that 
tract  of  land  situate  on  the  west  side  of  the  line  commonly 
called  the  line  of  property,  established  at  a  treaty  held  at 
Fort  Stanwix,  in  1768,  and  on  the  north  side  of  the  Pennsylva- 
nia line,  beginning  at  the  mouth  of  the  Unadilla,  or  Tianader- 
ha  river,  where  the  same  empties  into  the  Susquebr.nna  river ; 
thence,  up  the  said  Unadilla,  or  Tianaderha  river,  ten  miles, 
measured  on  a  straight  line ;  thence  due  west  to  the  Chenango 
river ;  thence  southerly  down  the  said  Chenango  river  to 
where  it  empties  into  the  said  Susquehanna  river,  and  to  the 
said  line,  called  the  line  of  property ;  thence  along  the  said 
line  to  the  place  of  beginning ;  so  as  to  comprehend  all  the 
land  belonging  to  the  Oneida  and  Tuscarora  nations,  lying 
south  of  the  said  line  to  be  run  from  the  said  Unadilla,  or 
Tianaderha  river,  to  the  Chenango  river,  and  north  of  the 
division  line  between  the  State  of  New- York  and  the  State 
of  Pennsylvania ;  together  with  all  ways,  waters,  water  cour- 
ses, rivers,  rivulets,  creeks,  and  streams,  of  water;  and  also 
all  mines  and  minerals,  which  are,  or  rnay  be,  found  there- 
on." &c. 


NEW-YORK.  63 

At  Fort  Schuyler,  Sept.  12, 1788,  the  ONONDAGAS  ceded  as 
follows:  "First,  the  Onondagas  do  cede  and  grant  all  their 
lands  to  ihe  People  of  the  State  of  New- York  forever.  Second- 
ly, the  Onondagas  shall,  of  the  said  ceded  lands,  hold  to  them- 
selves and  their  posterity,  forever,  for  their  own  use  and 
cultivation,  but  not  to  be  sold,  leased,  or  in  any  other  man- 
ner aliened  or  disposed  of  to  others,  all  that  tract  of  land 
beginning  at  the  southerly  end  of  the  Salt  Lake,  at  the  place 
where  the  river  or  stream  on  which  the  Onondagas  now  have 
their  village,  empties  into  the  said  lake,  and  runs  from  the 
said  place  of  beginning  east  three  miles;  thence  southerly, 
according  to  the  general  course  of  the  said  river,  until  it  shall 
intersect  a  line  running  east  and  west  at  the  distance  of  three 
miles,  south  from  the  said  village ;  thence  from  the  said  point 
of  intersection  west  nine  miles;  thence  northerly,  parallel  to 
the  second  course  above  mentioned,  until  an  east  line  will 
strike  the  place  of  beginning ;  and  thence  east  to  the  said 
place  of  beginning.  Thirdly,  the  Onondagas  and  their  pos- 
terity, forever,  shall  enjoy  the  free  right  of  hunting  in  every 
part  of  the  said  ceded  lands,  and  of  fishing  in  all  the  waters 
within  the  same.  Fourthly,  the  Salt  Lake,  and  the  lands 
for  one  mile  round  the  same,  shall  forever  remain  for  the 
common  benefit  of  the  People  of  the  State  of  New- York,  and 
of  the  Onondagas  and  their  posterity,  for  the  purpose  of 
making  salt,  and  shall  not  be  granted,  or  in  any  wise  dis- 
posed of,  for  other  purposes.  Fifthly,  in  consideration  of  the 
said  cession  and  grant,  the  People  of  the  State  of  New- York 
do,  at  this  treaty,  pay  to  the  Onondagas  one  thousand  French 
crowns  in  money,  and  two  hundred  pounds  in  clothing,  at 
the  price  which  the  same  cost  the  People  of  the  State  of  New- 
York.  And  the  People  of  the  State  of  New- York  shall 
annually  pay  to  the  Onondagas  and  their  posterity,  forever, 
on  the  first  day  of  June,  in  every  year,  at  Fort  Schuyler,  five 
hundred  dollars  in  silver;  but  if  the  Onondagas,  or  their 
posterity,  shall,  at  any  time  hereafter,  elect  that  the  whole  or 


64  1ROQUOIS  GRANTS  IN 

any  part  of  the  said  five  hundred  dollars  shall  be  paid  in 
clothing  or  provisions,  and  give  six  weeks  previous  notice 
thereof  to  the  Governor  of  the  said  State,  for  the  time  being, 
then,  so  much  of  the  annual  payment  shall,  for  that  time,  be 
in  clothing  or  provisions,  as  the  Onondagas  or  their  posterity 
shall  elect,  and  at  the  price  which  the  same  shall  cost  the 
People  of  the  State  of  New-York,  at  Fort  Schuyler  aforesaid. 
Sixthly,  the  People  of  the  State  of  New- York  may,  in  such 
manner  as  they  shall  deem  proper,  prevent  any  persons,  ex- 
cept the  Onondagas,  from  residing  or  settling  on  the  lands  so 
to  be  held  by  the  Onondagas  and  their  posterity,  for  their 
own  use  and  cultivation;  and  if  any  persons  shall,  without 
the  consent  of  the  People  of  the  State  of  New- York,  come  to 
reside  or  settle  on  the  said  lands,  or  on  any  other  of  the  lands 
so  ceded,  as  aforesaid,  the  Onondagas  and  their  posterity 
shall  forthwith  give  notice  of  such  intrusions  to  the  Governor 
of  the  said  State  for  the  time  being ;  and  further,  the  Onon- 
dagas, and  their  posterity,  forever,  shall,  at  the  request  of  the 
Governor  of  the  said  State,  be  aiding  to  the  People  of  the 
State  of  New- York,  in  removing  all  such  intruders,  and  in 
apprehending,  not  only  such  intruders,  but  also  felons  and 
other  offenders,  who  may  happen  to  be  on  the  said  ceded 
lands,  to  the  end  that  such  intruders,  felons,  and  other  offend- 
ers, may  be  brought  to  justice." 

At  Fort  Schuyler,  Sept.  22,  1788,  the  ONEIDAS  ceded  as 
follows :  "  First,  The  Oneidas  do  cede  and  grant  all  their 
lands  to  the  People  of  the  State  of  New- York,  forever.  Sec- 
ondly, of  the  said  ceded  lands,  the  following  tract,  to  wit :  be- 
ginning at  the  Woodcreek,  opposite  to  the  mouth  of  the  Cana- 
da creek,  and  where  the  line  of  property  comes  to  the  said  Wood 
creek,  and  runs  thence  southerly  to  the  northwest  corner  of 
the  tract  to  be  granted  to  John  Francis  Perache ;  thence, 
along  the  westerly  bounds  of  the  said  tract,  to  the  southwest 
corner  thereof ;  thence  to  the  northwest  corner  of  the  tract 
granted  to  James  Dean ;  thence,  along  the  westerly  bounds 


NEW-YORK.  65 

thereof,  to  the  southwest  corner  of  the  last  mentioned  tract ; 
thence,  due  south,  until  it  intersects  a  due  west  line  from  the 
head  of  the  Tianaderha,  or  Unadilla  river ;  thence,  from  the 
said  point  of  intersection,  due  west,  until  the  Deep  Spring 
bears  due  north;  thence,  due  north,  to  the  Deep  Spring; 
thence,  the  nearest  course  to  the  Canaseraga  creek;  and 
thence,  along  the  said  creek,  the  Oneida  Lake,  and  the  Wood 
creek,  to  the  place  of  beginning,  shall  be  reserved  for  the 
following  several  uses;  that  is  to  say:  the  lands  lying  to  the 
northward  of  a  line  parallel  to  the  southern  line  of  the  said 
reserved  lands,  and  four  miles  distant  from  the  said  southern 
line,  the  Oneidas  shall  hold  to  themselves  and  their  posterity, 
forever,  for  their  own  use  and  cultivation,  but  not  to  be  sold, 
leased,  or  in  any  other  manner  aliened  or  disposed  of,  to  oth- 
ers. The  Oneidas  may,  from  time  to  time,  forever,  make 
leases  of  the  lands  between  the  said  parallel  lines,  (being  the 
residue  of  the  said  reserved  lands,)  to  such  persons  and  on 
such  rents  reserved,  as  they  shall  deem  proper,  but  no  lease 
shall  be  for  a  longer  term  than  twenty-one  years  from  the 
making  thereof;  and  no  new  lease  shall  be  made  until  the 
former  lease  of  the  same  lands  shall  have  expired.  The 
rents  shall  be  to  the  use  of  the  Oneidas  and  their  posterity, 
forever.  And  the  People  of  the  State  of  New- York  shall, 
from  time  to  time,  make  provision  by  law  to  compel  the  les- 
sees to  pay  the  rents,  and  in  every  other  respect  to  enable  the 
Oneidas  and  their  posterity  to  have  the  full  benefit  of  their 
right  so  to  make  leases,  and  to  prevent  frauds  on  them  re- 
specting the  same:  and  the  Oneidas,  and  their  posterity, 
forever,  shall  enjoy  the  free  right  of  hunting  in  every  part  of 
the  said  ceded  lands,  and  of  fishing  in  all  the  waters  within 
the  same;  and,  especially,  there  shall  forever  remain  un- 
g  ran  ted  by  the  People  of  the  State  of  New- York,  one-half 
mile  square,  at  the  distance  of  every  six  miles  of  the  lands 
along  the  northern  bounds  of  the  Oneida  lake,  one-half  mile 
in  breadth  of  the  lands  on  each  side  of  the  Fish  creek,  and 


66  IROQUOIS  GRANTS  IN 

a  convenient  piece  of  land  at  the  fishing  place  in  the  Onon- 
daga  river,  about  three  miles  from  where  it  issues  out  of  the 
Oneida  lake,  and  to  remain  as  well  for  the  Oneidas  and  their 
posterity,  as  for  the  inhabitants  of  the  said  State,  to  land  and 
encamp  on.  But,  notwithstanding  any  reservation  to  the 
Oneidas,  the  People  of  the  State  of  New- York  may  erect 
public  works  and  edifices  as  they  shall  think  proper,  at  such 
place  and  places,  at  or  near  the  confluence  of  the  Wood  creek 
and  the  Oneida  lake,  as  they  shall  elect ;  and  may  take  and 
appropriate  for  such  works  or  buildings,  lands  to  the  extent 
of  one  square  mile,  at  each  place  :  and  further,  notwithstand- 
ing any  reservations  of  lands  to  the  Oneidas,  for  their  own 
use,  the  New-England  Indians,  (now  settled  at  Brotherton, 
under  the  pastoral  care  of  the  Rev.  Samson  Occum,)  and 
their  posterity,  forever,  and  the  Stockbridge  Indians,  and 
their  posterity,  forever,  are  to  enjoy  their  settlements  on  the 
lands  heretofore  given  to  them  by  the  Oneidas  for  that  pur- 
pose ;  that  is  to  say,  a  tract  of  two  miles  in  breadth  and  three 
miles  in  length,  for  the  New-England  Indians,  and  a  tract  of 
six  miles  square  for  the  Stockbridge  Indians.  Thirdly,  in 
consideration  of  the  said  cession  and  grant,  the  People  of  the 
State  of  New- York  do,  at  this  treaty,  pay  to  the  Oneidas  two 
thousand  dollars  in  money,  two  thousand  dollars  in  clothing, 
and  other  goods,  and  one  thousand  dollars  in  provisions;  and 
also  five  hundred  dollars  in  money,  to  be  applied  towards 
building  a  grist  mill  and  saw  mill  at  their  village :  and  the 
People  of  the  State  of  New- York  shall  annually  pay  to  the 
Oneidas,  and  their  posterity,  forever,  on  the  first  day  of  June, 
in  every  year,  at  Fort  Schuyler,  six  hundred  dollars  in  silver ; 
but  if  the  Oneidas,  or  their  posterity,  shall,  at  any  time  here- 
after, elect  that  the  whole,  or  any  part,  of  the  said  six  hun- 
dred dollars,  shall  be  paid  in  clothing  or  provisions,  and  give 
six  weeks  previous  notice  thereof  to  the  Governor  of  the  said 
State,  for  the  time  being,  then  so  much  of  the  annual  pay- 
ment shall,  for  that  time,  be  in  clothing  or  provisions,  as  the 


NEW-YORK.  67 

Oneidas  and  their  posterity  shall  elect,  and  at  the  price  which 
the  same  shall  cost  the  People  of  the  State  of  New- York  at 
Fort  Schuyler.  And,  as  a  further  consideration  to  the  Onei- 
das, the  People  of  the  State  of  New- York  shall  grant  to  the 
said  John  Francis  Perache,  a  tract  of  land,  beginning  in  the 
line  of  property,  at  a  certain  cedar  tree,  near  the  road  leading 
to  Oneida,  and  runs  from  the  said  cedar  tree  southerly  along 
the  line  of  property,  two  miles ;  then  westerly  at  right  angles 
to  the  said  line  of  property,  two  miles ;  then  northerly  at  right 
angles  to  the  last  course,  two  miles ;  and  then  to  the  place  of 
beginning;  which  the  said  John  Francis  Perache  hath  con- 
sented to  accept  from  the  Oneidas,  in  satisfaction  for  an  injury 
done  to  him  by  one  of  their  nation.  And  further,  the  lands 
intended  by  the  Oneidas  for  John  T.  Kirkland,  and  for 
George  W.  Kirkland,  being  now  appropriated  to  the  use  of 
the  Oneidas,  the  People  of  the  State  of  New-York  shall,  there- 
fore, by  a  grant  of  other  lands,  make  compensation  to  the 
said  John  T.  Kirkland  and  George  W.  Kirkland.  And  fur- 
ther, that  the  People  of  the  State  of  New-York  shall,  as  a 
benevolence  from  the  Oneidas  to  Peter  Penet,  and  in  return 
for  services  rendered  by  him  to  their  nation,  grant  to  the  said 
Peter  Penet,  of  the  said  ceded  lands  lying  to  the  northward 
of  the  Oneida  lake,  a  tract  often  miles  square,  wherever  he 
shall  select  the  same.  Fourthly,  the  People  of  the  State  of 
New- York  may,  in  such  manner  as  they  shall  deem  proper, 
prevent  any  persons,  except  the  Oneidas,  from  residing  or 
settling  on  the  lands  so  to  be  held  by  the  Oneidas  and  their 
posterity,  for  their  own  use  and  cultivation.  And  if  any 
persons  shall,  without  the  consent  of  the  People  of  the  State 
of  New- York,  come  to  reside  or  settle  on  the  said  lands,  or  on 
any  other  of  the  lands  so  ceded  as  aforesaid,  except  the  lands 
whereof  the  Oneidas  may  make  leases  as  aforesaid,  the  Onei- 
das arid  their  posterity  shall  forthwith  give  notice  of  such 
intrusions  to  the  Governor  of  the  said  State  for  the  time  being. 
And  further,  the  Oneidas  and  their  posterity  forever,  shall,  at 


68  IROQUOIS  GRANTS  IN 

the  requestof  the  Governor  of  the  said  State,  be  aiding  to  the 
People  of  the  State  of  New- York,  in  removing  all  such  in- 
truders ;  and  in  apprehending,  not  only  such  intruders,  but 
also  felons  and  other  offenders,  who  may  happen  to  be  on 
the  said  ceded  lands,  to  the  end  that  such  intruders,  felons, 
and  other  offenders,  may  be  brought  to  justice.  Before  the 
execution  hereof,  the  Oneidas,  in  public  council,  declared  to 
the  commissioners  that  they  had,  in  return  for  his  frequent 
good  offices  to  them,  given  to  John  J.  Bleecker,  of  the  lands 
reserved  for  their  own  use,  one  mile  square,  adjoining  to  the 
lands  of  James  Dean,  and  requested  that  the  same  might  be 
granted  and  confirmed  to  him  by  the  State." 

At  Albany,  Feb.  25,  1789,  the  CAYUGAS  ceded  as  follows : 
"First,  the  Cayugas  do  cede  and  grant  all  their  lands  to 
the  People  of  the  State  of  New- York,  forever.  Secondly,  the 
Cayugas  shall,  of  the  said  ceded  lands,  hold  to  themselves 
and  to  their  -posterity,  forever,  for  their  own  use  and  cul  tiva- 
tion,  but  not  to  be  sold,  leased,  or  in  any  other  mariner  aliened 
or  disposed  of  to  others,  all  that  tract  of  land,  beginning  at  the 
Cayuga  salt  spring,  on  the  Seneka  river,  and  running  thence 
southerly,  to  intersect  the  middle  of  a  line  to  be  drawn  from 
the  outlet  of  Cayuga  to  the  outlet  of  Waskongh,  and  from  the 
said  place  of  intersection,  southerly,  the  general  course  of  the 
eastern  bank  of  the  Cayuga  lake ;  thence  westerly,  to  inter- 
sect a  line  running  on  the  west  side  of  the  Caynga  lake,  at 
the  mean  distance  of  three  miles  from  the  western  bank 
thereof,  and  from  the  said  point  of  intersection,  along  the  said 
line,  so  running  on  the  west  side  of  the  Cayuga  lake,  to  the 
Seneka  river,  thence  down  the  said  river  to  the  Cayuga  lake ; 
thence  through  the  said  lake  to  the  outlet  thereof;  thence 
further  down  the  said  Seneka  river  to  the  place  of  beginning, 
so  as  to  comprehend  within  the  limits  aforesaid,  and  exclu- 
sive of  the  water  of  Cayuga  lake,  the  quantity  of  one  hun- 
dred square  miles.  Also,  the  place  in  the  Seneka  river,  at 
or  near  a  place  called  Skayes,  where  the  Cayugas  have 


NEW-YORK.  69 

heretofore  taken  eel ;  and  a  competent  piece  of  land  on  the 
southern  side  of  the  river,  at  the  said  place,  sufficient  for  the 
Cayugas  to  land  and  encamp  on,  and  to  cure  their  eel.  Ex- 
cepted,  nevertheless,  out  of  the  said  lands  so  reserved,  one 
rnile  square  at  the  Cayuga  ferry.  Thirdly,  the  Cayugas 
and  their  posterity,  forever,  shall  enjoy  the  free  right  of  hunt- 
ing in  every  part  of  the  said  ceded  lands,  and  of  fishing  in 
all  the  waters  within  the  same.  Fourthly,  in  consideration 
of  the  said  cession  and  grant,  the  People  of  the  State  of  New- 
York  do,  at  this  present  treaty,  pay  to  the  Cayugas  five 
hundred  dollars  in  silver;  and  the  People  of  the  State  of 
New- York  shall  pay  to  the  Cayugas,  on  the  first  day  of  June 
next,  at  Fort  Schuyler,  (formerly  called  Fort  Stanwix,)  the 
further  sum  of  one  thousand  six  hundred  and  twenty-five 
dollars  ;  and  also  the  People  of  the  State  of  New- York  shall 
annually  pay  to  the  Cayugas,  and  their  posterity,  forever,  on 
the  first  day  of  June,  in  every  year  thereafter,  at  Fort  Schuy- 
ler aforesaid,  five  hundred  dollars  in  silver.  But  if  the 
Cayugas,  or  their  posterity,  shall,  at  any  time  hereafter,  elect 
that  the  whole,  or  any  part  of  the  said  annual  payment  of 
five  hundred  dollars,  shall  be  paid  in  clothing  or  provisions, 
and  give  six  weeks  previous  notice  thereof  to  the  Governor 
of  the  said  State  for  the  time  being,  then  so  much  of  the 
annual  payment  shall,  for  that  time,  be  in  clothing  or  pro- 
visions, as  the  Cayugas  or  their  posterity  shall  elect,  and  at 
the  price  which  the  same  shall  cost  the  People  of  the  State 
of  New- York  at  Fort  Schuyler  aforesaid.  And,  as  a  further 
consideration  to  the  Cayugas,  the  People  of  the  State  of  New- 
York  shall  grant  to  their  adopted  child,  Peter  Ryckman, 
whom  they  have  expressed  a  desire  should  reside  near  them, 
to  assist  them,  and  as  a  benevolence  from  them,  the  Cayugas 
to  him,  and  in  return  for  services  rendered  by  him  to  their 
nation,  the  said  tract  of  one  mile  square  at  the  Cayuga  ferry 
excepted,  out  of  the  said  lands  reserved  to  the  Cayugas  for 
their  own  use  and  cultivation,  that  of  a  tract  beginning  on 


70  IROQUOIS  GRANTS  LN 

the  west  bank  of  the  Seneka  lake,  thence  running  due  west 
(passing  one  chain  north  of  a  house  lately  erected,  and  now 
in  the  occupation  of  the  said  Peter  Ryckman,)  to  the  line  of 
partition  between  this  State  of  New-York  and  the  Common- 
wealth of  Massachusetts,  of  the  lands  ceded  to  each  other ; 
thence  due  south  along  the  said  line  of  partition  ;  thence  due 
east  to  the  Seneka  lake  ;  thence  northerly  along  the  bank  of 
the  said  lake  to  the  place  of  beginning,  so  as  to  contain  sixteen 
thousand  acres.  The  People  of  the  State  of  New- York  shall 
grant  three  hundred  and  twenty  acres  to  a  white  person 
married  to  a  daughter  of  a  Cayuga,  named  Thaniowes,  in- 
cluding the  present  settlement  of  the  said  person  on  the  south 
side  of  Caghsion  creek;  and  that  the  People  of  the  State  of 
New- York  shall  grant  the  residue  of  the  said  tract  of  sixteen 
thousand  acres  to  the  said  Peter  Ryckman.  Fifthly,  the 
People  of  the  State  of  New- York  may,  at  all  times  hereafter, 
in  such  manner  and  by  such  means  as  they  shall  deem  pro- 
per, prevent  any  person,  except  the  Cayugas  and  their  adopted 
brethren  the  Paanese,  from  residing  or  settling  on  the  lands 
to  be  held  by  the  Cayugas  and  their  posterity,  for  their  own 
use  and  cultivation :  and  if  any  person  shall,  without  the 
consent  of  the  People  of  the  State  of  New- York,  come  to 
reside  or  settle  on  the  said  lands,  or  any  other  of  the  lands 
so  ceded  as  aforesaid,  the  Cayugas  and  their  posterity  shall 
forthwith  give  notice  of  such  intrusions  to  the  Governor  of 
the  said  State  for  the  time  being;  and  further,  the  Cayugas 
and  their  posterity,  forever,  shall,  at  the  request  of  the  Gover- 
nor of  the  said  State,  be  aiding  to  the  People  of  the  State  of 
New- York  in  removing  all  such  intruders ;  and  apprehending, 
not  only  such  intruders,  but  felons  and  other  olfenders,  who 
may  happen  to  be  on  the  said  ceded  lands,  to  the  end  that 
such  intruders,  felons,  and  other  offenders  may  be  brought  to 
justice.  Notwithstanding  the  said  reservation  herein  above 
specified  to  the  Cayugas,  it  is  declared  to  be  the  intent  of  the 
parties  that  the  Cayuga  called  the  Fish  Carrier,  shall  have 


NEW-YORK.  71 

a  mile  square  of  the  said  reserved  lands,  for  the  separate  use 
of  himself,  and  for  the  separate  use  of  his  family,  forever. 
Before  sealing  and  delivery  hereof,  it  was,  for  the  greater  cer- 
tainty, declared  to  be  the  intent  of  the  parties,  that  this  grant 
and  cession  is  only  of  the  lands  eastward  of  the  partition  line 
above  mentioned  between  this  State  of  New- York  and  the 
Commonwealth  of  Massachusetts  ;  and  that,  with  respect  to 
such  part  of  their  country  as  is  to  the  westward  of  the  said 
partition  line,  the  right  and  property  of  the  Cayugas  to  be  the 
same  as  if  this  grant  and  cession  had  not  been  made.  The 
Cayuga  salt  spring,  and  the  land  to  the  extent  of  one  mile 
around  the  same,  to  remain  for  the  common  use  and  benefit 
of  the  People  of  the  State  of  New- York,  and  of  the  Cayugas 
and  their  posterity,  forever.  And  the  land  to  be  reserved  at 
the  fishing  place  near  Skayes,  shall  be  of  the  extent  of  one 
mile  on  each  side  of  the  river,  the  above  reservation  of  land 
on  the  southern  side  of  the  river,  only,  notwithstanding." 

At  Fort  Stanwix,  June  22,  1790,  the  Cayugas  acknow- 
ledged the  payment,  as  stipulated  in  the  preceding  cession, 
and  made  the  following  stipulation  :  "  And  we,  the  said  Cay- 
ugas, in  consideration  thereof,  do,  by  these  presents,  fully, 
freely,  and  absolutely,  ratify  and  confirm  the  said  agree- 
ment and  cession,  and  all  and  singular  the  articles,  cov- 
enarlts,  matters,  and  things,  therein  expressed  and  contained, 
on  the  part  of  us,  the  said  Cayugas,  done  or  to  be  done, 
executed  or  performed  :  and  we,  the  said  Cayugas,  do  further 
hereby  grant  and  release  to  the  people  of  the  State  of  New- 
York,  all  our  right,  interest,  and  claim,  in  and  to  all  lands 
lying  east  of  the  line  of  cession  by  the  State  of  New- York 
to  the  Commonwealth  of  Massachusetts ;  except  the  lands 
mentioned  in  the  deed  of  cession  (of  the  25th  of  February, 
1789,)  to  be  reserved  to  us,  the  Cayugas,  and  our  posterity." 

At  Konondaigua,  Nov.  11,  1794,  the  Six  NATIONS  made 
a  treaty  with  Timothy  Pickering,  in  which  former  cessions 
by  the  Oneidas,  Onondagas  and  Cayugas  were  ratified,  and 


72  IROQUOIS  GRANTS  IN 

the  land  of  the  Senecas  defined  as  follows  :  "  Beginning  on 
Lake  Ontario,  at  the  Northwest  corner  of  the  land  they  sold 
to  Oliver  Phelps  ;*  the  line  runs  Westerly  along  the  lake, 
as  far  as  Oyongwongyeh  creek,  at  Johnston's  Landing 
Place,  about  four  miles  Eastward  from  the  Fort  of  Niagara ; 
then  Southerly,  up  that  creek  to  its  main  fork  ;  then,  straight 
to  the  main  fork  of  Stedman's  creek,  which  empties  into  the 
river  Niagara,  above  Fort  Schlosser ;  and  then  onward,  from 
that  fork,  continuing  the  same  straight  course,  to  that  river ; 
this  line,  from  the  mouth  of  Oyongwongyeh  creek  to  the 
river  Niagara,  above  Fort  Schlosser,  being  the  Eastern 
boundary  of  a  strip  of  land,  extending  from  the  same  line  to 
Niagara  river,  which  the  Seneca  nation  ceded  to  the  King 
of  Great  Britain,  at  a  treaty  held  about  thirty  years  ago, 
with  Sir  William  Johnston  ;)  then  the  line  runs  along  the 
river  Niagara  to  Lake  Erie ;  then  along  Lake  Erie,  to  the 
Northeast  corner  of  a  triangular  piece  of  land,  which  the 
United  States  conveyed  to  the  State  of  Pennsylvania,  as  by 
the  President's  patent,  dated  the  third  day  of  March,  1792 ; 
then  due  South  to  the  Northern  boundary  of  that  State ; 
then  due  east  to  the  southwest  corner  of  the  land  sold  by 
the  Seneca  nation  to  Oliver  Phelps ;  and  then  north  and 
northerly,  along  Phelp's  line,  to  the  place  of  beginning  on 
Lake  Ontario.  Now,  the  United  States  acknowledge  all  the 
land  within  the  aforementioned  boundaries,  to  be  the  proper- 
ty of  the  Seneca  nation ;  and  the  United  States  will  never 

*  In  the  year  1786,  the  State  of  New-York,  in  order  to  put  at  rest  certain  claims 
of  Masaaduuettfl,  granted  to  the  latter  all  that  part  of  the  State  lying1  west  of  a  lino 
extending  from  Little  Sodus  Ba,y  to  the  Pennsylvania  line,  except  about  a  mile  on  the 
east  side  of  the  Niagara  river  and  the  islands  in  that  stream.  Also  ten  townships 
six  miles  square,  in  Tioga  and  Broome.  Both  tracts  embraced  ten  thousand  square 
miles.  In  1787,  the  State  of  Massachusetts  grunted  the  first  tract  to  Oliver  Phelps  and 
Nathaniel  Gorham,  for  $1,000,000,  and  the  other  to  John  Brown  for  $3,300 .  Judge 
Phelps,  in  company  with  the  Rev.  Mr.  Kirkland,  the  Missionary  among  the  Six  Na- 
tions, and  a  Commissioner  on  behalf  of  Massachusetts,  met  the  Senecas  in  council 
near  Canandaigua  lake,  and  effected  a  treaty  with  them  ;  in  and  by  which  they  relin- 
quished possession  to  more  than  two  million  acres. 


NEW-YORK. 


73 


claim  the  same,  nor  disturb  the  Seneca  nation,  nor  any  of  the 
Six  Nations,  or  of  their  Indian  friends  residing  thereon  and 
united  with  them,  in  the  free  use  and  enjoyment  thereof: 
but  it  shall  remain  theirs,  until  they  choose  to  sell  the  same 
to  the  people  of  the  United  States,  who  have  the  right  to  pur- 
chase." 

At  New- York,  May  31,  1796,  the  SEVEN  NATIONS,  of 
Canada,  who  had  theretofore  made  some  claim  to  lands  about 
the  St.  Lawrence,  released  all  their  claim  to  land  in  the  State, 
except  six  miles  square,  and  certain  mills  and  privileges  re- 
served to  Alexander  Macomb,  for  Indians  of  the  village  of 
St.  Regis. 

At  Albany,  March  29,  1797,  the  MOHAWKS  relinquished 
all  claim  to  land  in  the  State,  and  acknowledged  payment 
therefor. 

At  Genesee,  September  15,  1797,  the  SENEGAS,  under 
sanction  of  the  United  States  Government,  deeded  to  Robert 
Morris,  of  Philadelphia,  "All  that  certain  tract  of  land,  ex- 
cept as  is  hereinafter  excepted,  lying  within  the  county  of 
Ontario,  and  State  of  New- York, being  part  of  a  tract  of  land, 
the  right  of  pre-emption  whereof  was  ceded  by  the  State  of 
New- York  to  the  Commonwealth  of  Massachusetts,  by  deed 
of  cession,  executed  at  Hartford,  on  the  sixteenth  day  of  De- 
cember, in  the  year  of  our  Lord  one  thousand  seven  hundred 
and  eighty -six,  being  all  such  part  thereof  as  is  not  included 
in  the  Indian  purchase,  made  by  Oliver  Phelps  and  Nathan- 
iel Gorham,  and  bounded  as  follows,  to  wit :  Easterly,  by 
the  land  confirmed  to  Oliver  Phelps  and  Nathaniel  Gorham, 
by  the  Legislature  of  the  Commonwealth  of  Massachusetts, 
by  an  act  passed  the  twenty-first  day  of  November,  in  the 
year  of  our  Lord  one  thousand  seven  hundred  and  eighty- 
eight  ;  southerly,  by  the  north  boundary  line  of  the  State  of 
Pennsylvania ;  westerly,  partly  by  a  tract  of  land,  part  of 
the  land  ceded  by  the  State  of  Massachusetts  to  the  United 
States,  and  by  them  sold  to  Pennsylvania,  being  a  right 
4 


74  IROQUOIS  GRANTS  IN 

angled  triangle,  whose  hypothenuse  is  in  or  along  the  shore 
of  Lake  Erie  ;  partly  by  Lake  Erie,  from  the  northern  point 
of  that  triangle  to  the  southern  bounds  of  a  tract  of  land  one 
mile  in  width,  lying  on  and  along  the  east  side  of  the  strait 
of  Niagara ;  and  partly  by  the  said  tract  to  Lake  Ontario ;  and 
on  the  north  by  the  boundary  line  between  the  United  States 
and  the  King  of  Great  Britain :  excepting  and  reserving 
to  them,  the  said  parties  of  the  first  part,  and  their  nation,  one 
piece  or  parcel  of  the  aforesaid  tract,  at  Canawagus,  of  two 
square  miles,  to  be  laid  out  in  such  manner  as  to  include 
the  village,  extending  in  breadth  one  mile  along  the  river  ; 
one  other  piece  or  parcel  at  Big  Tree,  of  two  square  miles,  to 
be  laid  out  in  such  manner  as  to  include  the  village,  ex- 
tending in  breadth  along  the  river  one  mile  ;  one  other  piece 
or  parcel  of  two  square  miles,  at  Little  Beard's  town,  extend- 
ing one  mile  along  the  river,  to  be  laid  out  in  such  manner 
as  to  include  the  village ;  one  other  tract  of  two  square  miles, 
at  Squaky  Hill ;  one  other  piece  or  parcel,  at  Kaounadeau, 
extending  in  length  eight  miles  along  the  river,  and  two  miles 
in  breadth ;  one  other  piece  or  parcel,  at  the  mouth  of  the 
Eighteen  Mile,  or  Koghquaugu  creek;  one  other  piece  at 
Cataraugos,  on  the  south  side  of  Cataraugos  creek;  one 
other  piece  or  parcel  of  forty-two  square  miles,  at  or  near 
theAllegany  river,  and  two  hundred  square  miles,  to  be  laid 
out  partly  at  the  Buffalo  and  partly  at  the  Tonnawanda  creeks. 
At  Oneida  village,  June  1, 1798,  the  ONEIDAS  ceded  to  the 
State  of  New- York  "  all  the  lands  within  the  reservation  to 
the  westward  and  southwestward  of  a  line  from  the  north- 
eastern corner  of  lot  number  fifty-four,  in  the  last  purchase 
from  them,  running  northerly  to  a  buttonwood  tree  marked, 
on  the  east  side,  "Oneida  R.  1798,"  on  the  west  side  "H.  P. 
S.  1798,"  and,  on  the  south  side,  with  three  notches  and  a 
blaze,  standing  on  the  bank  of  the  Oneida  lake,  in  the  south- 
ern part  of  a  bay  called  Newageghkoo ;  also,  a  mile  on  each 
side  of  the  main  Genesee  road,  for  the  distance  of  one  mile 


NEW-YORK.  75 

and  a  half  westward,  to  commence  at  the  eastern  boundary 
of  their  said  reservation,  and  also  the  same  breadth  for  the 
distance  of  three  miles  on  the  south  side,  and  of  one  mile 
on  the  north  side  of  the  said  road  eastward,  to  commence  at 
the  eastern  boundary  of  the  said  lot  number  fifty-four :  Pro- 
vided and  excepted,  nevertheless,  that  the  following  Indian 
families,  viz :  Sarah  Docksteder,  Cornelius  Docksteder,  Ja- 
cob Docksteder,  Lewis  Denny,  John  Denny,  Jan  Joost,  and 
Nicholas,  shall  be  suffered  to  possess  of  the  tract  first  above 
mentioned,  the  grounds  cultivated  by  them,  respectively,  and 
their  improvements,  not  exceeding  fifty  acres  to  each  family, 
so  long  as  they  shall  reside  there ;  and,  in  consideration  of 
this  proviso  and  exception,  the  said  Indians  do  further  cede 
a  tract  of  land  of  one  thousand  two  hundred  and  eighty 
acres,  as  follows,  that  is  to  say :  Beginning  in  the  southeast 
corner  of  lot  number  fifty-nine,  in  the  said  last  purchase,  and 
running  thence  east  one  mile ;  thence  north  two  miles ; 
thence  west  one  mile  ;  and  thence  south  two  miles  ;  shall  be 
considered  as  set  apart  by  the  said  nation  or  tribe,  for  the  use 
of  the  said  families,  whenever  they  shall  remove  from  where 
they  now  reside." 

At  Genesee,  in  the  year  1797,  the  SENEGAS  sold  to  Oliver 
Phelps  and  Nathaniel  Gorham,  a  large  tract  in  the  county  of 
Ontario,  which  was  confirmed  by  an  act  of  the  Legislature 
of  Massachusetts,  passed  November  21,  1788. 

At  Buffalo  Creek,  June  30,  18U2,  the  SENEGAS  conveyed 
"  Little  Beard's  reservation,"  containing  one  thousand  two 
hundred  and  eighty  acres,  to  Oliver  Phelps,  Isaac  Bronson, 
and  Horatio  Jones. 

At  Buffalo  Creek,  June  30,  1802,  the  SENEGAS,  with  the 
approbation  of  the  United  States  Commissioner,  deeded  to 
Wilhem  Will  ink,  Pieter  Van  Eeghen,  Hendrik  Vollenhoven, 
W.  Willink,  the  younger,  I.  Will  ink,  the  younger,  (son  of 
Jan,)  Jan  Gabriel  Van  Staphorst,  Roelof  Van  Staphorst,  the 
younger,  Cornells  Vollenhoven,  and  Hendrik  Seye,  a  com- 


76  IROQUOIS  GRANTS  IN 

pany  in  Holland,  who  had  theretofore  purchased  a  large 
tract :  all  those  lands  situate,  lying,  and  being  in  the  county 
of  Ontario,  and  State  of  New-York,  '  beginning  at  the  mouth 
of  the  Eighteen  Mile  or  Koghquawgu  creek ;  thence,  a  line 
or  lines  to  be  drawn  parallel  to  lake  Erie,  at  the  distance  of 
one  mile  from  the  lake,  to  the  mouth  of  Cattaraugus  creek  ; 
thence,  a  line  or  lines  extending  twelve  miles  up  the  north 
side  of  said  creek,  at  the  distance  of  one  mile  therefrom;  thence 
a  direct  line  to  the  said  creek ;  thence  down  the  said  creek  to 
lake  Erie  ;  thence  along  the  lake  to  the  first  mentioned  creek  ; 
and  thence  to  the  place  of  beginning.  Also,  one  other  piece 
at  Cattaraugus,  beginning  at  the  shore  of  lake  Erie,  on  the 
south  side  of  Cattaraugus  creek,  at  the  distance  of  one  mile 
from  the  mouth  thereof;  thence  running  one  mile  from  the 
lake  ;  thence  on  a  line  parallel  thereto,  to  a  point  within  one 
mile  from  the  Connondauweyea  creek;  thence  up  the  said 
creek  one  mile,  on  a  line  parallel  thereto ;  thence  on  a  direct 
line  to  the  said  creek ;  thence  down  the  same  to  lake  Erie ; 
thence  along  the  lake  to  the  place  of  beginning.' 

At  Moscow,  in  the  county  of  Livingston,  September  3, 
1823,  the  SENEGAS,  with  the  approbation  of  Commissioners, 
conveyed  to  John  Greig  and  Henry  B.  Gibson,  all  that 
tract,  piece,  or  parcel  of  land,  commonly  called  and  known 
by  the  name  of  the  Gardeau  reservation,  situate,  lying,  and 
being  in  the  counties  of  Livingston  and  Genesee. 

At  Buffalo  Creek,  January  15, 1838,  the  SENEGAS  conveyed 
to  Thomas  L.  Ogden  and  Joseph  Fellows,  with  the  approba- 
tion of  the  U.  S.  Commissioner,  and  the  other  tribes  of  the  Iro- 
quois,  all  those  immense  tracts  known  as  the  Buffalo  Creek, 


The  following  Acts  of  the  Legislature  relate  to  Indian  lands,  and  should  be  ex- 
amined in  connection  with  the  Iroquois  cessions  and  grants :  Location  on  Lands  of: 
Sess.  Laws,  1788.  Agents  to  purchase  Lands  of:  idem,  1793.  Agreements  made 
•with,  ratified  1796.  Concerning  pre-emptions,  1798.  Sale  of  lands,  1798.  Act 
concerning  bounty  lands  granted  to  for  services  during  the  Revolutionary  war.  Act 
authorizing  the  Governor  to  hold  treaties  with,  1813.  Act  relative  to  the  different 
tribes,  1826.  Act  in  relation  to  certain  tribes,  of  1841. 


NEW- YORK.  77 

the  Cattaraugus,  the  Alleghany,  the  Tonawanda,  and  the 
Tuscarora  reservations.     [Vide  Sess.  Laws,  1838.] 

At  Buffalo  Creek,  May  20,  1842,  divers  questions  and  dif- 
ferences between  the  parties  to  the  foregoing,  were,  by  treaty, 
adjusted,  so  that  the  Senecas  were  left  in  possession  of  the 
Cattaraugus  and  Allegany  reservations.  [Sess.  Laws,  1842.] 

XII.  RESERVATIONS  AND  GUARANTIES  OF  THE  CONSTI- 
TUTION. 

NEW-YORK  adopted  her  first  Constitution  April  20,  1777, 
whilst  the  war  of  the  revolution  was  upon  us.  Whatever 
might  have  been  sound  policy  at  another  day  and  occasion,  it 
was  then  deemed  unwise  to  arouse  the  patroons  to  arms  against 
the  effort  that  was  making  to  throw  off  the  burthens  which 
Great  Britain  had  imposed  on  this  and  other  colonies  ;  but  on 
the  contrary  to  extend  abundant  courtesy  and  care  to  such 
eminent  land  owners.  Hence,  it  was  specially  provided  in 
that  instrument,  that  all  grants  and  charters  made  under  the 
authority  of  the  King  of  Great  Britain,  prior  to  the  fourteenth 
day  of  October,  1775,  should  be  reserved ;  and  that  nothing 
therein  contained  should  affect  any  grants  of  land  within 
this  State,  made  by  said  King,  or  any  of  his  predecessors. 

The  same  provisions  were  carried  into  the  amended  Con- 
stitution of  1821,  and  have  been  preserved  in  that  of  1846, 
in  the  following  words :  "  All  grants  of  land  within  this 
State,  made  by  the  King  of  Great  Britain,  or  persons  acting 
under  his  authority,  after  the  fourteenth  day  of  October,  one 
thousand  seven  hundred  and  seventy-five,  shall  be  null  and 
void ;  but  nothing  contained  in  this  constitution  shall  affect 
any  grants  of  land  within  this  State,  made  by  the  authority 
of  the  said  King  or  his  predecessors,  or  shall  annul  any  char- 
ters to  bodies  politic  or  corporate,  by  him  or  them  made  before 
that  day ;  or  shall  affect  any  such  grants  or  charters  since 
made  by  this  State,  or  by  persons  acting  under  its  authority, 
or  shall  impair  the  obligation  of  any  debts  contracted  by  this 


78  CONSTITUTION  OF 

State,  or  individuals,  or  bodies  corporate,  or  any  other  rights 
of  property,  or  any  suits,  actions,  rights  of  action,  or  other 
proceedings  in  courts  of  justice."  [Section  18  of  Art.  1,  of 
New  Constitution,  in  Appendix.] 

Although  the  former  Constitutions  did  not  in  terms  declare 
the  abolition  of  all  feudal  tenures,  rents  and  services  certain  ; 
nor  that  the  people  were  possessed  of  the  original  and  ulti- 
mate property  in  and  to  all  lands  within  the  borders  of  the 
commonwealth,  they  recognized  and  recited  the  declaration 
of  independence,  and  renounced  and  abjured  all  foreign  au- 
thority, as  well  over  lands  as  the  people.  In  1846,  however, 
it  was  deemed  politic  to  make  the  principle  fundamental,  and 
to  restrict  the  terms  of  leases.  Hence  the  following  provi- 
sions in  the  present  constitution  : 

' "  The  people  of  this  State,  in  their  right  of  sovereignty,  are 
deemed  to  possess  the  original  and  ultimate  property  in  and 
to  all  lands  within  the  jurisdiction  of  the  State  ;  and  all  lands 
the  title  to  which  shall  fail,  from  a  defect  of  heirs,  shall  revert 
or  escheat  to  the  people."  [Const,  of  N.  Y.,  Sec.  1 1  of  Art.  1 .] 

"  All  feudal  tenures,  of  every  description,  with  alllheir  in- 
cidents, are  declared  to  be  abolished,  saving,  however,  all 
rents  and  services  certain,  which  at  any  time  heretofore  have 
been  lawfully  created  or  reserved."  [Id.,  Sec.  12.] 

"All  lands  within  this  State  are  declared  to  be  allodial,  so 
that,  subject  only  to  the  liability  to  escheat,  the  entire  and 'ab- 
solute property  is  vested  in  the  owners  according  to  the  na- 
ture of  their  respective  estates."  [Id.,  Sec.  13.] 

"  No  lease  or  grant  of  agricultural  land,  for  a  longer  period 
than  twelve  years,  hereafter  made,  in  which  shall  be  reserv- 
ed any  rent  or  service  of  any  kind,  shall  be  valid."  [Id., 
Sec.  14.] 

"  All  fines,  quarter  sales,  or  other  like  restraints  upon  aliena- 
tion, reserved  in  any  grant  of  land  hereafter  to  be  made,  shall 
be  void."  [Id.,  Sec.  15.] 

Whilst  all  subsisting  leases  for  terms  exceeding  twelve 


NEW-YORK.  79 

years,  and  all  such  as  contain  reservations  of  fines,  quarter 
sales,  and  other  similar  restraints  upon  alienation,  were  vest- 
ed rights  that  could  not  be  disturbed,  the  prevailing  discon- 
tent amongst  the  tenants  of  the  several  manors,  indicated  a 
necessity  for  the  latter  provisions,  and  to  which  the  statutes 
will  doubtless  be  made  to  conform. 

XIII.     LAND    TITLES    GENERALLY. 

THE  Constitution  of  New- York  declares  all  lands  within 
the  State  to  be  allodial,  and  that  the  entire  and  absolute  prop- 
erty vests  in  the  owners  according  to  the  nature  of  their  re- 
spective estates.  The  Statute  declares  every  estate  of  inher- 
itance a  fee  simple, or  fee;  and  every  indefeasible  estate  a  fee 
simple  absolute,  or  an  absolute  fee.  [1  R.  S.,  717.]  A  fee 
continues  forever,  and  is  transmissible  or  descendible  to 
heirs.  [Wright  on  Tenures,  148.] 

All  estates  in  lands  come  within  one  of  the  four  divisions  fol- 
lowing, viz  :  First,  Estates  of  inheritance  ;  Second,  Estates 
for  life;  Third,  Estates  for  years;  Fourth,  Estates  at  will. 
These  are  su  bject  to  the  following  provisions :  "  Estates  of  in- 
heritance, and  for  life,  shall  continue  to  be  denominated  estates 
of  freehold  ;  estates  for  years  shall  be  chattels  real ;  and  estates 
at  will,  or  by  sufferance,  shall  be  chattel  interests,  but  shall  not 
be  liable  as  such  to  sale  on  executions."  [1.  R.  S.  717,  Sec.  5.] 

Estates  of  inheritance  are  defeasible  or  indefeasible ; 
when  they  are  defeasible  they  are  mortgage  interests ;  and 
when  indefeasible  they  are  termed  a  fee  simple  absolute. 
Estates  are  also  divided  with  reference  to  the  period  of  their 
enjoyment,  into  estates  in  possession,  and  estates  in  expect- 
ancy— the  former  being  where  the  right  to  possession  is  im- 
mediate ;  the  latter  where  the  possession  is  postponed  to  a 
future  day.  Estates  in  expectancy  are  divided  into  future 
estates  and  reversions — the  one  being  where  the  estate  is  lim- 
ited to  commence  in  possession  at  a  future  day, either  without 
the  intervention  of  a  precedent  estate,  or  on  the  determination 


80  LAND  TITLES  IN 

by  lapse  of  time,  or  otherwise,  of  a  precedent  estate  created 
at  the  same  time  ;  and  the  other  is  the  residue  of  estate  left 
in  the  grantor  or  his  heirs,  or  in  the  heirs  of  a  testator,  com- 
mencing in  possession  on  the  determination  of  a  particular 
estate  granted  or  devised.  Future  estates  are  also  divided, 
and  are  either  vested  or  contingent — vested  when  there  is  a 
person  in  being  who  would  have  an  immediate  right  to  the 
possession  of  the  lands,  upon  the  ceasing  of  the  immediate  or 
precedent  estate  ;  and  contingent  whilst  the  person  to  whom, 
or  the  event  upon  which,  they  are  limited  to  take  effect,  re- 
mains uncertain.  [Id.,  Sec.  13.] 

Successive  estates  for  life  cannot  be  limited  except  to  per- 
sons in  being  at  the  creation  thereof;  and  in  case  a  remain- 
der shall  be  limited  on  more  than  two  successive  estates  for 
life,  all  the  life  estates  subsequent  to  those  of  the  two  persons 
first  entitled  thereto  are  void,  and  upon  the  death  of  those 
persons,  the  remainder  takes  effect  the  same  as  if  no  other 
life  estates  had  been  created.  Nor  can  a  remainder  be  crea- 
ted upon  an  estate  for  the  life  of  any  other  person  or  persons 
than  the  grantee  or  devisee  of  such  estate,  unless  such  re- 
mainder be  in  fee.  If  a  remainder  be  created  upon  an  estate 
in  a  term  for  years,  it  is  required  to  be  for  the  whole  residue 
of  such  term.  When  a  remainder  shall  be  created  upon  any 
such  life  estate,  and  more  than  two  persons  shall  be  named 
as  the  persons  during  whose  lives  the  estate  shall  continue, 
the  remainder  takes  effect  upon  the  death  of  the  two  persons 
first  named,  in  the  same  manner  as  if  no  other  lives  had  been 
introduced.  Contingent  remainders  cannot  be  created  on  a 
term  of  years,  except  where  the  nature  of  the  contingency  on 
which  it  is  limited  be  such  that  the  remainder  must  vest  in 
interest,  during  the  continuance  of  not  more  than  two  lives, 
in  being  at  the  creation  of  such  remainder,  or  upon  the  term- 
ination thereof.  Estates  for  life  cannot  be  limited  on  a  term 
of  years,  except  to  a  person  in  being  at  the  creation  of  such 
estate.  [Id.,  719,  Sec.  21.] 


NEW-YORK.  81 

Future  estates,  however,  may  be  created  to  take  effect  in 
the  alternative,  so  that  if  the  first  in  order  shall  fail  to  vest, 
the  next  in  succession  may  be  substituted  for  it,  and  the 
same  will  take  effect  accordingly.  The  probability,  or  im- 
probability, of  any  contingency,  makes  no  difference  with  the 
estate.  It  will  not  be  void  on  that  account,  if  it  were  other- 
wise valid.  [Idem,  720.] 

The  absolute  power  of  alienation  of  lands  in  New- York 
cannot  be  suspended  by  deed,  will,  or  otherwise,  for  a  longer 
period  than  during  the  continuance  of  not  more  than  two 
lives,  in  being  at  the  creation  of  the  estate,  except  that  a  con- 
tingent remainder  in  fee  may  be  created  on  a  prior  remainder 
in  fee,  to  take  effect  in  the  event  that  the  persons  to  whom 
the  first  remainder  is  limited,  shall  die  under  the  age  of 
twenty-one  years,  or  upon  any  other  contingency  by  which 
the  estate  of  such  persons  may  be  determined  before  they 
attain  their  full  age.  [Id.,  Sec.  16.] 

There  is  another  division  of  estates  recognized  by  statute, 
which  relates  to  the  number  and  connection  of  the  owners 
thereof.  These  are  denominated  estates  in  severally,  joint 
tenancy,  and  tenancy  in  common.  The  nature  of  these  will 
be  apprehended  by  the  reader,  from  the  foregoing  explana- 
tions, and  therefore  require  no  comment.  Where  estates  are 
either  granted  or  devised  to  one  person,  the  same  will  be  in 
several ty,  but  if  the  same  be  to  two  or  more  it  will  be  held 
to  be  a  tenancy  in  common,  in  all  cases  where  the  grant  or 
testament  does  not  otherwise  expressly  declare,  except  where 
estates  are  vested  in  executors  or  trustees.  In  the  latter  case 
it  will  be  a  joint  tenancy.  This  rule  applies  as  well  to  estates 
not  vested  as  to  those  already  created. 

Estates  in  trust  may  be  created  where  the  trust  is  express, 
and  for  the  purpose  of  selling  lands  for  the  benefit  of  credit- 
ors ;  or  of  selling,  mortgaging,  or  leasing  them,  for  the  benefit 
of  legatees,  or  for  the  purpose  of  satisfying  any  charge  there- 
on ;  or  of  receiving  the  rents  and  profits  and  applying  them 


LAND  TITLES  IN 

to  the  use  of  any  person  during  the  life  of  such  person,  or  for 
a  time ;  or  of  accumulating  them  for  a  period  of  time,  and  for 
a  specific  purpose  not  inconsistent  with  the  foregoing  regu- 
lations. Upon  the  death  of  a  surviving  trustee  of  an  express 
trust,  the  trust  vests  in  the  Court  of  Chancery,  and  another 
person  may  be  appointed  by  that  court  to  execute  it. 

"  The  people  of  this  State  in  their  right  of  sovereignty, 
are  deemed  to  possess  the  original  and  ultimate  property  in 
and  to  all  lands  within  the  jurisdiction  of  the  State  ;  and  all 
lands,  the  title  to  which  shall  fail  from  a  defect  of  heirs,  shall 
revert  or  escheat  to  the  people."  All  feudal  tenures  are 
abolished,  yet  the  people,  in  their  sovereign  capacity,  are 
quasi  the  lord,  and  take  by  escheat  under  the  provisions  of 
the  statute. 

Every  citizen  of  the  United  States  is  capable  of  holding 
lands  in  New- York,  and  of  taking  the  same  by  descent, 
devise,  or  purchase ;  and  no  title  or  claim  of  any  citizen  of 
this  State,  who  was  in  actual  possession  of  lands  on  the 
twenty-first  day  of  April,  1.825,  or  at  any  time  before,  can 
be  defeated  or  prejudiced  on  account  of  the  alienism  of  any 
person  through  or  from  whom  his  title  or  claim  to  such  lands 
may  have  been  derived.  While  the  foregoing  might  seem 
to  restrict  freehold  estates  to  citizens  of  the  United  States,  it 
is  nevertheless  provided  that  aliens  and  Indians  may,  in  cer- 
tain cases,  and  subject  to  certain  conditions,  become  vested 
with  a  title.  By-the  laws  of  1825,  and  which  have  become 
a  part  of  the  revised  code,  aliens  coming  to  this  country,  who 
shall  make  a  deposition  or  affirmation  in  writing,  before  any 
officer  authorized  to  take  the  proof  of  deeds  to  be  recorded, 
that  they  are  residents  of,  and  intend  always  to  reside  in  the 
United  States,  and  to  become  citizens  thereof  as  soon  as  they 
can  be  naturalized,  and  that  they  have  already  taken  such 
incipient  measures  as  the  laws  of  the  United  States  require, 
to  enable  them  to  obtain  naturalization,  and  which  shall  be 
certified  by  such  officer,  and  be  filed  and  recorded  by  the 


NEW-YORK.  83 

Secretary  of  State,  may  take  and  hold  lands,  and  within  six 
years  convey  the  same.  In  case  any  such  alien  shall  die 
within  the  six  years  next  after  having  filed  and  recorded 
such  deposition  or  affirmation,  his  lands  will  descend  to  the 
heirs  of  his  body,  in  the  same  manner  as  if  he  had  been  a 
citizen  at  the  time  of  his  death.  If,  however,  he  have  no 
heirs  in  the  country  at  his  decease,  his  lands  escheat  to  the 
State ;  but  according  to  the  custom  of  the  Legislature,  in 
cases  where  there  are  heirs  living  in  a  foreign  country,  at  his 
decease,  and  who  subsequently  come  and  themselves  file  a 
deposition  which  entitles  them  to  hold  real  estate,  and  de- 
mand a  release,  the  same  will  be  released  to  them  if  the  same 
are  not  sold  ;  or  if  sold,  then  the  avails  will  be  granted  them, 
subject  to  a  drawback  of  a  per  centage  and  charges. 

Every  person  capable  of  holding  lands  (except  idiots,  luna- 
tics, and  infants)  may  convey ;  yet  aliens  must  convey 
within  six  years  after  having  filed  the  affidavit  above  men- 
tioned, and  Indians  must  previously  obtain  the  consent  of 
the  Legislature.  The  State,  as  a  matter  of  course,  may  al- 
ways convey,  by  the  executive  officer  thereof,  and  under  the 

seal  entrusted  to  his  care. 

• 

XIV.  THE  EXECUTION  OF  DEEDS  AND  MORTGAGES  IN 
NEW-YORK. 

"A DEED,"  says  Blackstone,  "is  a  writing, sealed  and  de- 
livered by  the  parties."  In  England,  whence  our  laws  are 
derived,  much  formality  and  precision  were  essential  to  the 
validity  of  a  deed,  in  consequence  of  its  being  an  act  the  most 
solemn  and  authentic  that  a  man  can  perform,  in  relation  to 
the  disposal  of  his  property.  Whatever  a  man  avows  in  a 
deed,  he  is  forever  estopped  from  contradicting.  Form'erly, 
deeds  were  required  to  be  indicted  on  stamped  parchment, 
and  indented,  that  is,  as  many  copies  as  there  were  parties  to 
the  instrument  were  placed  together,  and  the  upper  margin 
thereof  cut  in  a  waving  line,  each  to  correspond  with  the 


84  EXECUTION  OF  DEEDS  IN 

other.  Hence  the  term  "  indenture,"  which  is  yet  employed 
in  the  body  of  absolute  conveyances,  but  without  any  force 
beyond  the  significancy  of  a  deed.  These,  with  many  other 
arbitrary  laws  concerning  conveyances,  have  either  been  re- 
laxed by  the  Legislature,  or  adapted  to  the  condition  of  a 
people  who  are  themselves  sovereigns,  and  as  such,  in  their 
collective  capacity,  possess  the  original  and  ultimate  property 
in  all  lands  within  the  borders  of  the  State.  So  much  for- 
mality, however,  as  is  essential  to  the  security  of  parties  to  a 
deed,  is,  nevertheless,  required. 

The  statute  provides,  that  "  every  grant  in  fee,  or  of  a 
freehold  estate,  shall  be  subscribed  arid  sealed  by  the  per- 
son from  whom  the  estate  or  interest  conveyed  is  in- 
tended to  pass,  or  his  lawful  agent."  [1  R.  S.,  731,  Sec. 
137.]  No  particular  form  of  words  is  requisite,  beyond 
what  may  be  termed  a  bare  sufficiency  to  specify  the  agree- 
ment and  bind  the  parties.  Prior  to  the  reign  of  the  Sec- 
ond Charles,  conveyances  were  made  in  England  by  parol ; 
but  as  it  opened  the  door  to  the  grossest  frauds,  a  legal 
and  orderly  arrangement  of  written  or  printed  words 
were  found  necessary  in  all  grants.  The  English  statute, 
grounded  upon  that  necessity,  while  it  forbade  oral  grants, 
established  a  rule  that  has  found  its  way  into  ours.  An  or- 
derly arrangement  of  written  words  is  therefore  essential  to 
a  deed ;  and  these  should  set  forth  the  name  and  residence 
of  each  of  the  parties,  the  consideration,  the  precise  interest 
granted,  a  concise  description  of  the  premises,  the  place 
where  situated,  the  reservations,  if  any  made,  and  the  cove- 
nants of  the  grantor. 

The  conveyance  may  be  either  on  paper  or  parchment, 
but  if  it  be  written  on  stone,  board,  linen,  leather,  or  the  like, 
it  is  no  deed.  The  reason  assigned  in  the  books  for  the  use 
of  paper  or  parchment  is,  that  "  writing  thereon  unites  in  it- 
self, more  perfectly  than  in  any  other  way,  preservation  and 


NEW-YORK.  85 

It  must  be  subscribed  by  the  grantor,  or  his  agent.  The 
name  of  the  grantor  is  required,  if  the  person  executing  the 
deed  be  capable  of  writing  it ;  if  he  be  not,  then  his  mark,  in 
any  form  he  may  choose  to  adopt,  will  answer  for  a  signa- 
ture, provided  there  be  a  subscribing  witness  of  the  fact. 

It  must  be  sealed.  Where  there  are  no  orders  of  knight- 
hood or  nobility,  impressions  of  coats  of  arms  are  superflui- 
ties ;  yet  a  seal,  in  order  to  be  valid,  must  be  composed  of 
wax,  wafer,  or  some  adhesive  or  impressive  substance.  That 
most  commonly  used  is  a  wafer,  with  a  small  piece  of  paper 
covering  it,  attached  to  the  deed,  at  the  right  of  the  signature. 
Any  similar  sealing  is  valid,  but  a  scroll,  enclosing  L  S,  at 
the  end  of  a  name,  is  not  a  sealing  within  the  statute. 

It  must  be  delivered.  Deeds  take  effect  from  the  time  of 
their  delivery,  and  where  they  are  not  acknowledged  pre- 
vious to  delivery,  they  must  be  attested  by  at  least  one  sub- 
scribing witness.  [1  R.  S.,  731.] 

The  consideration  must  be  good.  Fraud,  collusion  and 
usury  vitiate  contracts.  A  consideration,  to  be  good,  depends 
not  upon  equivalents,  except  so  far  as  the  same  may  indicate 
bad  faith,  usury,  or  collusion,  as  in  the  case  of  a  transfer  of 
property,  to  hinder,  delay,  or  defraud  creditors.  A  deed  with- 
out any  consideration  is  invalid,  for  it  is  construed  to  inure 
only  to  the  benefit  of  the  grantor.  [2  Bl.,  297.]  Except,  as 
against  creditors,  very  slight  considerations  will  support  a 
deed.  A  pecuniary  consideration  is  necessary  ;  yet  this  is 
not  confined  to  money.  The  rule  is  satisfied  by  land  or 
property  in  exchange,  a  resulting  benefit,  or  securities  for  the 
payment.  [9  Cowan's  R.,  60.]  Love  and  affection,  as  be- 
tween parent  and  child,  &c.,  is  a  good  consideration,  where 
the  transfer  is  otherwise  legal,  and  is  not  made  with  a  view 
to  secrete  property,  pr  defraud  creditors. 

A  consideration  for  a  deed  should  be  expressed  therein ; 
but  where  it  is  not,  it  may  be  shown  dehors  the  deed  if  one 
actually  passed.  The  proof  must,  however,  be  explanatory, 


86  EXECUTION  OF  DEEDS  IN 

and  not  contradictory,  of  any  thing  contained  in  a  deed, 
for  whatever  is  avowed  therein  cannot  be  denied  by  the 
grantor. 

It  has  been  held,  that  where  the  only  consideration  ex- 
pressed in  a  deed  is,  that  a  grantee  shall  support  the  grantor, 
or  some  other  person,  or  do  some  act,  to  enforce  which  the 
agreement  must  be  in  writing,  by  law,  the  same  is  void,  be- 
cause the  grantee  is  not  bound  to  perform.  [16  Johnson,  47.] 
Such  a  consideration  is  destitute  of  substance,  and  cannot 
support  a  deed. 

It  must  be  accepted  in  fact,  or  by  construction.  To  give 
effect  to  a  delivery,  there  must  be  an  acceptance,  or  some- 
thing equivalent  to  one,  in  a  case  of  bargain  and  sale.  The 
mere  passing  of  a  deed  to  another  who  refuses  to  take  it, 
does  not  complete  the  transfer ;  until  he  accepts,  the  trans- 
action is  inchoate  and  imperfect.  Where  the  delivery  is  the 
mandate  of  a  decree,  or  the  condition  of  a  previous  contract, 
the  rule  bends  to  the  exigency  of  the  case ;  but  in  those  cases, 
more  regard  is  had  to  the  personal  liability  of  parties  and 
their  obligation  to  perform  their  covenants,  than  to  what 
constitutes  a  valid  transfer  of  the  land  which  the  deed  in 
question  purports  to  convey.  A  tender  of  a  deed  duly  exe- 
cuted, and  which  is  either  witnessed  or  acknowledged,  and 
delivered  to  a  third  person,  for  the  benefit  of  the  grantee, 
will,  in  some  special  cases,  it  is  presumed,  invest  him  with 
the  title.  In  such  case,  however,  such  deposit  must  be  after 
refusal  by  the  grantee,  and  with  his  knowledge,  or  by  his 
permission,  direction  or  consent. 

What  constitutes  a  delivery  must  depend,  in  many  cases, 
upon  circumstances  and  contingencies  which  cannot  be  here 
enumerated.  It  has  been  held,  that  a  formal  delivery  is  not 
necessary,  if  there  be  acts  evincing  an  intent  to  deliver. 
[1  J.  C.  250.J  But  where  a  deed  was  executed  and  acknow- 
ledged, but  retained  by  the  grantor  as  security  for  the  con- 
sideration money,  although  done  by  the  direction  and  at  the 


NEW-YORK.  87 

request  of  the  grantee,  it  was  held  that  it  was  no  convey- 
ance, and  that  the  title  remained  in  the  grantor.  But  if  a 
deed  be  executed  and  acknowledged  and  delivered  to  a  third 
person,  by  consent  of  both  parties,  until  some  condition  pre- 
cedent is  performed  by  the  grantee,  and  such  condition  shall 
be  subsequently  performed,  and  the  grantee  afterward  receive 
the  deed ;  in  such  case  the  deed  will  be  valid,  and  the  title 
of  the  grantee  will  relate  back  to  the  time  when  the  deed 
was  made  an  escrow.  [18  John,  544.] 

Fraud  receives  no  quarter  in  the  law,  and  it  is  not  protect- 
ed by  a  seal.  It  is  a  vice  whose  turpitude  so  far  enters  into 
the  essence  of  any  contract,  that  the  whole  instrument  is 
supposed  to  be  contaminated  therewith.  It  is,  however,  a 
question  of  fact,  where  fraud  is  alledged  ;  and  whenever  it  is 
put  in  issue  in  courts  of  justice,  it  is  the  province  of  a  jury  to 
determine  it.  [8  Cowan,  406.] 

A  conveyance  of  land  subject  to  the  condition  of  being 
defeated  by  a  payment  of  a  specified  sum,  within  a  limited 
time,  is  termed  a  mortgage.  This  species  of  written  instru- 
ments is  much  in  use,  and  is  suggested  by  the  wants  and 
convenience  of  mankind.  The  conditions  of  a  mortgage 
are  usually  inserted  in  its  body,  but  the  defeasance  may  be 
contained  in  a  separate  instrument.  It  should,  however,  be 
executed  in  due  form,  for  recording  in  the  same  office,  with 
the  conveyance.  The  practice  of  separating  the  defeasance 
from  the  conveyance  is  liable  to  accidents  and  abuse,  is  pro- 
ductive of  fraud,  and  should  be  discouraged. 

The  character  of  any  conveyance  is  determined  by  the 
clear  and  certain  intention  of  the  parties ;  and  any  agreement 
in  a  deed,  or  in  a  separate  instrument,  showing  that  the  par- 
ties intended  that  the  conveyance  should  operate  as  a  secu- 
rity for  the  re- payment  of  money,  is,  in  effect,  a  mortgage. 
A  deed,  although  absolute  in  its  terms,  may  be  proved  by 
parol  to  have  been  intended  only  as  a  mortgage.  And  if  a 
deed  be  once  a  mortgage,  its  Character  cannot  be  afterwards 


88  EXECUTION  OF  DEEDS  IN 

changed.     The   maxim  is,  u  once  a  mortgage,   always  a 
mortgage." 

A  power  of  sale  is  usually  inserted  in  a  mortgage ;  yet, 
such  power  is  not  requisite  to  its  validity.  It  is  a  matter  of 
convenience  in  most  cases,  however,  and  enables  the  mort- 
gagee to  effect  a  collection  of  his  debt  with  greater  facility 
and  ease. 

The  execution  and  delivery  of  mortgages  are  governed  by 
the  same  rules  which  regulate  the  execution  of  deeds.  And 
as  an  instrument  under  seal  cannot  be  revoked  by  another 
of  lesser  authority  in  law,  it  follows  that  instruments  for 
the  cancelation  of  mortgages  should  be  signed,  sealed  and 
delivered  with  the  same  formality. 

Although  a  mortgage  is  a  species  of  deed,  conveying  a 
qualified  interest  in  land,  it  is  proper  to  remark  that  the  free- 
hold is  adjudged  to  remain  in  the  mortgagor,  and  that  the 
mortgagee  acquires  but  a  chattel  interest  in  the  premises.  It 
is  termed  a  lien,  and  not  a  fee.  But  as  the  mortgagor  may 
be  disseized  and  dispossessed  by  a  foreclosure,  the  same 
formality  is  required  in  the  execution  of  a  mortgage  as  in  an 
absolute  conveyance. 

The  legal  operation  of  a  deed  is  to  pass  the  incident  a? 
well  as  the  principal,  although  the  latter  only  be  mentioned  ; 
and  this  effect  cannot  be  avoided,  without  a  reservation  there- 
in, or  in  a  contemporaneous  instrument.  Growing  crops, 
for  instance,  are  an  incident  which  pass  with  land,  unless 
they  are  reserved.  They  are,  however,  not  an  incident,  if 
they  have  been  previously  sold.  All  prior  and  contempo- 
raneous negotiations  are  merged  in  a  deed.  This  should  be 
understood  by  every  land  dealer.  Whatever  stipulations  and 
reservations  the  parties  agree  to,  prior  to  the- execution  of  a 
deed,  become  nugatory,  if  no  mention  thereof  be  made  in  the 
conveyance,  or  some  contemporaneous  writing.  The  courts 
hold  that  a  deed  must  receive  its  construction  as  to  what  it 
conveys,  from  its  language  and  matter. 


NEW-YORK.  89 

In  construing  deeds,  that  which  is  most  material  and  cer- 
tain prevails  over  that  which  is  less  so.  This  very  plain 
and  evident  proposition  lies  at  the  bottom  of  a  multitude  of 
decisions,  settling  the  law  in  respect  to  boundaries.  Thus, 
when  a  deed  defines  a  line  by  a  certain  number  of  chains 
and  links  to  the  bank  of  a  river,  a  spring,  or  a  marked  tree, 
and  it  is  found  that  the  chains  do  not  agree  with  the  monu- 
ments, the  latter,  being  most  certain,  control.  Hence  it  is 
adjudged  that  courses  and  distances  shall  yield  to  natural 
and  ascertained  objects,  such  as  a  river,  a  stream,  a  spring, 
or  a  marked  tree.  [5  Cowan's  R.,  37.] 

The  interest  in  land  which  passes  to  the  grantee  is  quali- 
fied by  the  covenants  contained  in  a  deed.  Thus,  if  one  be 
in  possession  of  land  without  title,  and  convey  to  another  by 
quit  claim,  the  latter  acquires  but  a  possessory  title  to  the 
premises;  but  if  the  deed  contain  covenants  of  warranty  it  is 
otherwise,  for  it  would  operate  as  an  estoppel  upon  the 
grantor,  if  he  should  seek  to  regain  possession. 

Deeds  are  expounded  by  the  courts  so  as  to  give  them  ef- 
fect according  to  the  intention  of  the  parties,  where  that  in- 
tention can  be  determined  from  the  face  of  the  instrument ; 
and  all  uncertainties  are  taken  in  favor  of  the  grantee  in  pos- 
session, although  no  covenants  will  be  taken  by  implication 
or  inference. 

XV.  THE  PROOF  AND  ACKNOWLEDGMENT  OP  DEEDS  AND 
MORTGAGES  IN  NEW-YORK. 

IN  order  to  entitle  any  conveyance  of  land  to  be  recorded 
by  any  County  Clerk,  the  statute  provides  that  it  shall  be  ac- 
knowledged by  the  party  or  parties  executing  the  same,  or 
proved  by  a  subscribing  witness  thereto,  before  any  of  the 
following  officers,  viz: 

1.  If  acknowledged  or  proved  within  this  State,  the  Chan- 
cellor, Justices  of  the  Supreme  Court,. Circuit  Judges,  Supreme. 
Court  Commissioners,  Judges  of  County  Courts,  Mayors  and 


90  ACKNOWLEDGMENT  OF  DEEDS  IN 

Recorders  of  cities,  Commissioners  of  Deeds  in  cities,  and 
Justices  of  the  Peace  in  towns ;  but  no  Judge,  Commissioner 
of  Deeds,  or  Justice  of  the  Peace,  shall  take  any  acknowledg- 
ment out  of  the  county  or  city,  for  which  he  was  appointed. 

2.  If  acknowledged  or  proved  out  of  this  State,  arid  with- 
in the  United  States,  the  Chief  and  Associate  Justices  of  the 
Supreme  Court  of  the  United  States,  District  Judges  of  the 
United  States,  the  Judges  or  Justices  of  the  Supreme  or  Su- 
perior or  Circuit  Court  of  any  State  or  Territory  within  the 
United  States,  and  the  Chief  Judge,  or  any  Associate  Judge 
of  the  Circuit  Court  of  the  United  States  in  the  District  of 
Columbia;  but  no  proof  or  acknowledgment  taken  by  any 
such  officer  shall  entitle  a  conveyance  to  be  recorded,  unless 
taken  within  some  place  or  territory  to  which  the  jurisdic- 
tion of  the  court  to  which  he  belongs  shall  extend. 

3.  Every  acknowledgment,  or  proof  of  a  deed  or  mortgage 
made  or  taken  before  the  Mayor  of  either  of  the  cities  of  Phila- 
delphia or  Baltimore,  or  before  any  Consul  of  the  United 
States,  resident  in  any  foreign  port  or  country,  or  before  a 
Judge  in  the  highest  court  in  Upper  Canada  or  Lower  Cana- 
da, and  certified  by  them  respectively,  shall  be  as  valid  and 
effectual  as  if  taken  before  one  of  the  Justices  of  the  Supreme 
Court  of  this  State.     [1  R.  S.,  747,  Sec.  4.] 

The  statute  further  provides  "  that  if  the  party  or  parties 
executing  such  conveyance  shall  be  or  reside  in  any  State  or 
Kingdom  in  Europe,  or  in  North  or  South  America,  the  same 
may  be  acknowledged  before  any  Minister  Plenipotentiary, 
or  any  Minister  Extraordinary,  or  any  Charge  d' Affaires  of 
the  United  States  resident,  and  accredited  within  such  State 
or  Kingdom.  If  such  parties  be  or  reside  in  France,  such 
conveyance  may  be  acknowledged  or  proved  before  the  Con- 
sul of  the  United  States,  appointed  to  reside  at  Paris ;  and  if 
such  parties  be  or  reside  in  Russia,  such  conveyance  may  be 
acknowledged  or  proved  before  the  Consul  of  the  United 
States,  appointed  to  reside  at  St,  Petersburg!!.  [Id.,  Sec.  5.]  If 


NEW-YORK. 

the  party  or  parties  to  such  conveyance  reside  within  the 
United  Kingdom  of  Great  Britain  and  Ireland,  or  the  do- 
minions thereto  belonging,  the  same  may  be  acknowledged 
or  proved  before  the  Mayor  of  the  city  of  London  ;  the  Mayor 
or  Chief  Magistrate  of  Dublin,  or  the  Provost  or  Chief  Magis- 
trate of  Edinburgh,  or  before  the  Mayor  or  Chief  Magistrate 
of  Liverpool,  or  before  the  Consul  of  the  United  States,  ap- 
pointed to  reside  at  London.  [Id.,  Sec.  6.]  Such  proof  or  ac- 
knowledgment duly  certified,  under  the  hand  and  seal  of  office 
of  such  Consul,  Mayors  or  Chief  Magistrates,  respectively, 
or  of  such  Minister  or  Charge  d'Atfaires,  shall  have  the  like 
force  and  validity,  as  if  the  same  were  taken  before  a  Justice 
of  the  Supreme  Court  of  the  State.  [Id.,  Sec.  7.]  Commis- 
sioners may  be  appointed  to  take  proof  of  deeds  without  the 
State,  and  the  acknowledgment  or  proof  taken  before  them 
shall  be  of  the  like  force  and  validity  as  if  the  same  were 
taken  before  the  proper  officer  within  this  State.  But  no  ac- 
knowledgment of  any  conveyance  having  been  executed, 
shall  be  taken  by  any  officer,  unless  the  officer  taking  the 
same  shall  know,  or  have  satisfactory  evidence,  that  the  per- 
son making  such  acknowledgment  is  the  individual  described 
in  and  who  executed  such  conveyance/' 

"  The  acknowledgment  of  a  married  woman  residing  with- 
in this  State,  to  a  conveyance  purporting  to  be  executed  by 
her,  shall  not  be  taken  unless,  in  addition  to  the  requisites 
contained  in  the  preceding  section,  she  acknowledge  on  a  pri- 
vate examination  apart  from  her  husband,  that  she  executed 
such  conveyance  freely  and  without  any  fear  or  compulsion 
of  her  husband ;  nor  shall  any  estate  of  any  such  married 
woman  pass  by  any  conveyance  not  so  acknowledged."  [1  R. 
S.,  Sec.  10.] 

"When  any  married  woman  not  residing  in  this  State 
shall  join  with  her  husband  in  any  conveyance  of  any  real 
estate  situate  within  this  State,  the  conveyance  shall  have 
the  same  effect  as  if  she  were  sole  ;  and  the  acknowledgment 


92  ACKNOWLEDGMENT  OF  DEEDS  IN 

or  proof  of  the  execution  of  such  conveyance  by  her,  may  be 
the  same  as  if  she  were  sole."     [Id.,  Sec.  2.] 

The  proof  of  the  execution  of  any  conveyance  shall  be 
made  by  a  subscribing  witness  thereto,  who  shall  state  his 
own  place  of  residence,  and  that  he  knew  the  person  describ- 
ed in  and  who  executed  such  conveyance  ;  and  such  proof 
shall  not  be  taken  unless  the  officer  is  personally  acquainted 
with  such  subscribing  witness,  or  has  satisfactory  evidence 
that  he  is  the  same  person  who  was  a  subscribing  witness  to 
such  instrument.  [Id.,  Sec.  12.] 

"  Upon  the  application  of  any  grantee  in  any  conveyance, 
his  heirs  or  personal  representatives,  or  of  any  person  claim- 
ing under  them,  verified  by  the  oath  of  the  applicant,  that 
any  witness  to  the  conveyance,  residing  in  the  county  where 
such  application  is  made,  refuses  to  appear  and  testify,  touch- 
ing the  execution  thereof,  and  that  such  conveyance  cannot 
be  proved  without  his  evidence,  any  officer  authorized  to 
take  the  acknowledgment  or  proof  of  conveyances,  except  a 
Commissioner  of  Deeds  and  Justices  of  the  Peace,  may  issue  a 
subpoena,  requiring  such  witness  to  appear  and  testify  before 
such  officer,  touching  the  execution  of  such  conveyance." 
[Id.,  Sec.  13.] 

Every  person  who,  being  served  with  such  subpoena,  shall, 
without  reasonable  cause,  refuse  or  neglect  to  appear,  or  ap- 
pearing shall  refuse  to  answer  upon  oath,  touching  the  mat- 
ters aforesaid,  shall  forfeit  to  the  party  injured  one  hundred 
dollars ;  and  may  also  be  committed  to  prison  by  the  officer 
who  issued  such  subpoena,  there  to  remain  without  bail,  arid 
without  the  liberties  of  the  jail,  until  he  shall  submit  to  an- 
swer upon  oath  as  aforesaid.  [Id.,  Sec.  14.J 

"  Every  officer  who  shall  take  the  proof  or  acknowledg- 
ment of  any  conveyance,  shall  endorse  a  certificate  thereof, 
signed  by  himself  on  the  conveyance  ;  and  in  such  certifi- 
cate shall  set  forth  the  matters  herein  before  required  to  be 
done,  known,  or  proved,  on  such  acknowledgment  or  proof, 


NEW-YORK.  93 

together  with  the  names  of  the  witnesses  examined  before 
such  officer,  and  their  places  of  residence,  and  the  substance 
of  the  evidence  by  them  given."  [Id.,  Sec.  15.] 

Inattention  to  the  latter  provision  on  the  part  of  acknow- 
ledging officers,  commonly  proves  vexatious,  and  frequently 
disastrous.  A  deed,  although  in  fact  perfectly  acknowledged, 
but  which  has  endorsed  upon  it  a  certificate  which  does  not 
fully  set  forth  every  fact  requisite  to  a  perfect  acknowledg- 
ment, can  neither  be  read  in  evidence  nor  recorded.  Indeed, 
an  imperfect  certificate  is  of  no  avail  whatever  to  the  grantee 
or  his  assigns,  but  may  induce  a  reliance,  as  upon  a  broken 
reed,  until  it  is  too  late  to  retrieve  the  error.  The  statute  is 
very  explicit  in  this  respect,  and  requires  the  certificate  to 
set  forth  all  the  matters  required  to  be  done,  in  order  to  con- 
stitute a  perfect  acknowledgment.  In  terms,  it  requires  the 
officer  to  Av/o//,  or  have  satisfactory  evidence,  that  the  person 
making  an  acknowledgment  is  the  person  described  in  and 
who  executed  the  conveyance.  These  are  matters  required, 
and  hence  the  certificate  must  set  forth  the  fact.  If  the  proof 
be  made  by  a  subscribing  witness  thereto,  that  is,  to  the  convey- 
ance, the  statute  requires  that  such  witness  state  his  own 
place  of  residence,  and  that  he  knew  the  person  described  in 
and  who  executed  the  same.  This,  also,  is  a  matter  required 
to  be  done,  and  must  be  set  forth  fully.  In  no  case  can  a 
deed  be  proved  by  a  subscribing  witness  unless  the  officer 
know  such  witness,  or  have  satisfactory  evidence  that  he  is 
the  subscribing  witness  whose  name  appears  to  the  deed. 
This,  as  well  as  the  name  of  the  witness,  is  material  matter 
and  must  be  embraced  in  the  certificate.  If  a  married  woman 
residing  within  this  State  desire  to  acknowledge  a  deed,  she 
must,  in  addition  to  other  requirements,  acknowledge  on  a 
private  examination  apart  from*  her  husband,  that  she  ex- 
ecuted such  conveyance  freely  and  without  any  fear  or 
compulsion  of  her  husband.  This,  also,  must  be  set  forth, 
to  the  end  that  a  court,  or  recording  officer,  may  have  the 


94  ACKNOWLEDGMENT  OF  DEEDS  IN 

official  declaration  of  the  acknowledging  officer  that  the  stat- 
ute has  in  all  respects  been  complied  with  ;  and  so  in  respect 
to  every  other  provisional  requirement  concerning  acknow- 
ledgments or  the  proof  of  deeds  and  mortgages.  It  were 
better  that  the  certificate  embrace  redundant  matter  than 
omit  a  word  that  is  material. 

To  the  certificate  when  written,  should  be  subscribed  not 
only  the  proper  name  of  the  acknowledging  officer,  but  his 
official  title  at  length.  If  the  officer  be  a  Judge,  it  should 
appear  of  what  court ;  if  a  Commissioner,  that  he  is  a  Com- 
missioner of  Deeds  of  the  city  and  county  of  New- York,  or 
other  place  as  thecasemay  be ;  and  if  he  be  a  Minister  Plen- 
ipotentiary or  Charge  d' Affaires,  to  what  Government  he 
is  accredited. 

Abbreviations  in  official  signatures  are  sometimes  allowed, 
but  when  they  fail  to  express  definitely  the  official  capacity 
in  which  the  act  in  question  is  pei  formed,  or  to  contradistin- 
guish the  officer  from  any  other  officer  of  the  government, 
the  signature  is  defective :  as  for  instance,  "  Comr."  is  an  ac- 
cepted abbreviation  of  "  Commissioner ;'.'  but  unless  it  be  ac- 
companied with  the  words  "  of  Deeds,"  it  may  be  construed 
to  mean  as  well'a  "Commissioner  of  Excise,"  or  a  "Com- 
missioner of  Highways,"  as  a  "Commissioner  of  Deeds," 
who  alone  can  take  the  acknowledgment  and  proof  of  deeds, 
among  the  list  of  "  Commissioners."  Hence  such  a  signa- 
ture would  be  insignificant,  and  consequently  defective.  So 
where  the  officer  has  a  local  jurisdiction,  as  in  case  of  a  Jus- 
tice of  the  Peace,  the  county  which  limits  that  jurisdiction 
should  be  annexed,  in  order  that  the  court,  or  the  recording 
officer,  may  determine  whether  any  further  authentication  is 
requisite.  This,  however,  is  otherwise,  where  the  official 
name  and  title  appear  at  length  in  the  body  of  the  certificate, 
for  in  that  case,  the  signature  or  proper  name  of  the  officer 
is  alone  necessary. 


NEW-YORK.  95 

XVI.  THE  RECORDING  OF  DEEDS  AND  MORTGAGES  IN 
NEW-YORK,  AND  THE  EFFECT  THEREOF. 

THE  practice  of  requiring  muniments  of  title  to  be  placed 
in  the  archives  of  the  government,  although  somewhat 
onerous  upon  grantees,  was  attended  with  an  advantage 
which  countervailed  all  arguments  to  the  contrary. 

In  the  earlier  days  of  this  commonwealth,  much  vexation, 
fraud  and  disaster  grew  out  of  its  disregard.  Upon  the  or- 
ganization of  the  State  by  counties,  with  a  Clerk  and  a  seal, 
that  officer  was  charged  as  keeper  of  the  archives  of  his 
county,  and  required  to  record  in  books,  to  be  by  him  pro- 
vided and  kept,  all  conveyances  of  land  within  his  county, 
provided  the  same  were  duly  executed,  acknowledged,  or 
proven,  and  authenticated.  The  County  Clerks  are  now  the 
recorders  for  their  respective  counties.  The  statutes  regu- 
lating the  recording  of  deeds  are  as  follows :  "  Every  con- 
veyance of  real  estate  within  this  State  [hereafter  made] 
shall  be  recorded  in  the  office  of  the  Clerk  of  the  county 
where  such  real  estate  shall  be  situated ;  and  every  such 
conveyance  not  so  recorded  shall  be  void,  as  against  any 
subsequent  purchaser  in  good  faith,  and  for  a  valuable  con- 
sideration, of  the  same  real  estate,  or  any  portion  thereof, 
whose  conveyance  shall  be  first  duly  recorded."  [1  R.  S., 
746,  Sec.  1. 

Before  the  Revised  Statutes  went  into  operation,  there  ex- 
isted a  different  rule  in  relation  to  the  recording  of  mortgag- 
es than  that  which  prevailed  in  respect  to  deeds ;  but  the 
revisers  placed  deeds  and  mortgages  on  the  same  footing. 
Deeds  and  mortgages  are  now  denominated  "  conveyances," 
and  the  same  rules  are  applicable  to  both.  "Every  convey- 
ance of  real  estate  shall  be  recorded,"  is  now  the  language 
employed,  and  includes  as  well  defeasible  as  indefeasible 
titles. 


96  RECORDING  OF  DEEDS  IN 

Although  the  statute  is  peremptory  in  form,  it  is  potential  in 
effect ;  in  so  far,  that  he  who  chooses  to  hazard  his  title  by 
neglecting  to  record  his  deed,  may  do  so,  and  abide  any  dis- 
aster that  may  attend  the  jeopardy.  The  consequence  of  his 
neglect  is,  that  his  unrecorded  deed  is  absolutely  void,  as 
against  any  subsequent  purchaser  in  good  faith  and  for  a  val- 
uable consideration  of  the  same  real  estate,  or  any  portion 
thereof,  whose  conveyance  shall  be  first  duly  recorded.  A 
subsequent  conveyance,  however,  will  not  take  precedence, 
although  first  recorded,  unless  it  be  in  good  faith,  and  for  a 
valuable  consideration.  The  good  faith  will  be  presumed, 
until  the  contrary  be  shown  in  all  cases ;  hence,  the  burden 
of  proving  bad  faith  and  want  of  consideration,  to  defeat  a 
subsequent  purchaser  or  mortgagee,  will  rest  upon  the  prior 
purchaser. 

"  Good  faith,"  in  this  connection,  indicates  knowledge^  or 
notice  of  the  prior  unrecorded  conveyance.  If  the  subsequent 
purchaser  knew  of  the  prior  deed,  however  slight  maybe  his 
knowledge,  the  law  will  not  accredit  him  good  faith  toward 
the  prior  grantee,  in  taking  a  subsequent  conveyance  of  the 
same  land  ;  for  to  do  so,  would  be  to  contravene  the  general 
policy  of  the  statute.  A  valuable  consideration  is  requisite 
to  the  validity  of  the  second  conveyance ;  for  if  there  be  no 
consideration  paid  by  the  subsequent  purchaser  or  mortgagee, 
he  will  have  lost  nothing  of  value,  in  case  his  deed  is  de- 
clared void  ;  and  the  equity  of  the  statute  will  be  in  favor  of 
the  prior  grantee,  whose  deed  was  upon  a  valuable  consider- 
ation. Hence,  the  statute  requiring  good  faith  and  a  valua- 
ble consideration  on  the  part  of  a  subsequent  purchaser,  to 
enable  his  deed  to  prevail  against  another  of  a  prior  date,  is 
founded  in  equity  and  sound  policy. 

It  is  further  enacted,  that  different  sets  of  books  shall  be 
provided  by  the  Clerks  of  the  several  counties,  for  the  record- 
ing of  deeds  and  mortgages  ;  in  one  of  which  sets,  all  con- 
veyances, absolute  in  their  terms,  and  not  intended  as  mort- 


NEW-YORK.  97 

gages,  or  as  securities  in  the  nature  of  mortgages,  shall  be 
recorded  ;  and  in  the  other  set.  such  mortgages  and  securi- 
ties shall  be  recorded."  [Id.,  Sec.  2.] 

'•'Every  deed  conveying  real  estate,  which  by  any  other 
instrument  in  writing  shall  appear  to  have  been  intended 
only  as  a  security  in  the  nature  of  a  mortgage,  though  it  be 
an  absolute  conveyance  in  terms,  shall  be  considered  as  a 
mortgage ;  and  the  person  for  whose  benefit  such  deed  shall 
be  made,  shall  not  derive  any  advantage  from  the  recording 
thereof,  unless  every  writing  operating  as  a  defeasance  of  the 
snme,  or  explanatory  of  its  being  designed  to  have  the  effect 
only  of  a  mortgage,  or  conditional  deed,  be  also  recorded 
therewith,  and  at  the  same  time."  [Id.,  Sec.  3.] 

This  section  of  the  statute  was  enacted  for  the  prevention 
of  fraud.  Whilst  it  recognizes  the  doctrine  advanced  in  rela- 
tion to  deeds  and  mortgages  where  the  defeasance  is  separate 
from  the  conveyance,  it  at  the  same  time  makes  provision 
against  the  collusion  and  fraud  which  such  conveyances 
might  otherwise  cover,  by  going  upon  record  as  absolute 
conveyances,  to  the  prejudice  of  creditors  of  the  grantor, 
when  the  same  was  in  fact  but  a  mortgage.  The  grantee, 
therefore,  of  such  a  conveyance,  must  take  heed  that  the 
defeasance  executed  by  himself  to  the  grantor  thereof,  be  not 
only  recorded,  but  recorded  contemporaneously  with  his 
conveyance,  lest  he  lose  all  benefit  of  the  recording  of  the 
latter.  The  Clerk,  it  will  bo  remembered,  is  required  to 
provide  and  keep  different  sets  of  books,  in  which  to  keep  the 
record  of  deeds  and  mortgages.  Whilst  the  recording  is 
notice  to  all  the  world  of  the  existence  of  a  conveyance,  it 
must  be  observed  nevertheless,  that  an  improper  record  is 
not  a  notice  that  will  bind  a  creditor,  subsequent  purchaser, 
or  incumbrancer.  To  record  a  conveyance,  absolute  upon 
its  face,  but  intended  as  a  mortgage  without  the  defeasance, 
would  be  to  record  it  as  a  deed,  in  a  set  of  books  other  and 
different  from  those  which  contain  the  record  of  mortgages* 
5 


98  RECORDING  OF  DEEDS  IN 

In  such  case,  the  record  thereof  would  not  be  the  record  of 
a  mortgage ;  and  the  constructive  notice  thereof  would  not 
be  notice  of  a  mortgage,  but  rather  of  a  deed ;  and  being 
improperly  recorded,  the  statute  deprives  the  grantee  of  all 
benefit  of  the  record.  To  protect  it  against  subsequent 
purchasers  and  incumbrancers,  it  must  be  recorded  as  a 
mortgage ;  but  this  cannot  be  done  unless  the  defeasance 
goes  upon  record  "therewith  and  at  the  same  time."  In 
1  Paige,  553,  Chancellor  Wai  worth  remarks  that  "the  ob- 
ject of  this  statute  undoubtedly  was  to  require  every  deed 
or  instrument  which  was  in  fact  only  a  mortgage,  to  be 
recorded.  In  Day  vs.  Dunham,  2  John,  Ch.  Rep.  188,  Chan- 
cellor Kent  held,  that  a  deed  absolute  upon  its  face,  but 
intended  only  as  a  security  by  way  of  mortgage,  must  be 
recorded  as  a  mortgage,  to  protect  the  property  against  a 
bona  fide  purchaser  ;  and  that  a  constructive  notice,  arising 
from  its  being  recorded  as  a  deed,  was  not  sufficient.  It  is 
true,  in  that  case  there  was  a  written  defeasance  ;  but  it  was 
not  executed  until  six  months  after  the  recording  of  the  abso- 
lute deed,  and  long  after  the  conveyance  to  the  adverse  party. 
It  therefore  could  not  have  altered  his  rights  if  the  defeas- 
ance had  continued  in  parol.  If  the  deed  and  defeasance 
had  been  recorded  together  as  a  mortgage,  the  moment  the 
defeasance  was  executed  it  would  not  have  protected  the 
property  against  the  intermediate  conveyance.  The  decree 
in  that  cause  was  afterwards  reversed  in  the  Court  of  Errors, 
on  the  ground  that  the  intermediate  purchaser  had  actual 
notice,  but  the  decision  upon  the  point  now  under  considera- 
tion was  deemed  correct.  [15  John,  555.]  The  same  ques- 
tion came  before  the  court  in  James  vs.  Johnson  and  Morey, 
[6  Johnson,  Ch.  Rep.  417,]  where  there  was  no  written 
defeasance,  arid  was  decided  in  the  same  way.  When  that 
case  afterwards  came  before  the  Court  of  Errors,  [2  Cowan, 
247,]  the  present  Chief  Justice  examined  that  question  and 
concurred  in  the  construction  of  the  statute  given  by  Chan- 


NEW-YORK.  90 

cellor  Kent ;  and  the  correctness  of  that  construction  was  not 
questioned  by  any  member  of  the  court. 

There  can  be  no  hardship  or  injustice  in  such  a  construc- 
tion ;  but  on  the  contrary,  it  will  more  effectually  carry  into 
effect  the  intention  of  the  Legislature,  and  prevent  fraudulent 
conveyances  and  secret  trusts.  If  a  conveyance  is  intended 
only  as  a  mortgage,  there  can  be  no  good  reason  why  the 
terms  on  which  it  is  to  be  defeasible  should  not  appear  on  its 
face.  If,  through  inadvertence,  it  is  taken  as  an  absolute 
deed,  the  holder  may  comply  with  the  terms  of  the  statute 
by  making  a  written  defeasance,  specifying  the  conditions 
on  which  it  was  intended  to  be  given,  and  recording  both 
together  in  the  book  of  mortgages.  If  he  do  this  before  the 
rights  of  any  third  party  have  intervened,  he  will  be  protected. 
And  if  he  neglect  it,  he  will  only  be  in  the  same  situation 
of  every  other  mortgagee  who  neglects  to  have  his  security 
recorded.  To  entitle  any  conveyance  to  be  recorded,  either 
as  a  deed  or  mortgage,  it  must  be  properly  acknowledged  by 
the  party  or  parties  executing  the  same,  or  proved  by  a  sub- 
scribing witness  thereto  and  have  endorsed  thereon  a  certificate 
of  such  proof  or  acknowledgment,  which  certificate  goes  upon 
the  record  as  an  incident,  together  with  any  authentication 
that  may  be  attached.  The  statute  provides  that "  where  any 
conveyance  shall  be  proved  or  acknowledged  before  any 
Judge  of  the  County  Courts,  not  of  the  degree  of  Counsellor 
at  Law  in  the  Supreme  Court,  or  before  any  Commissioner  of 
Deeds,  or  Justice  of  the  Peace  of  any  county,  it  shall  not  be 
entitled  to  be  read  in  evidence,  or  to  be  recorded  in  any  other 
county  than  that  in  which  such  Judge,  Commissioner  or 
Justice  resides,  unless  in  addition  to  the  preceding  requisites 
there  shall  be  subjoined  to  the  certificate  of  proof  or  acknow- 
ledgment signed  by  such  Judge,  Commissioner  or  Justice  of 
the  Peace,  a  certificate  under  the  hand  and  official  seal  of  the 
Clerk  of  the  county  in  which  such  Judge,  Commissioner  or 
Justice  resides,  specifying  that  such  Judge,  Commissioner  or 


100  RECORDING  OF  DEEDS  IN 

Justice  of  the  Peace  was,  at  the  time  of  taking  such  proof  or 
acknowledgment,  duly  authorized  to  take  the  same,  and  that 
the  said  Clerk  is  well  acquainted  with  the  hand  writing  of 
such  Judge,  Commissioner  or  Justice  of  the  Peace,  and  verily 
believes  that  the  signature  to  the  said  certificate  of  proof  or  ac- 
knowledgment is  genuine.  [Id.,  Sec.  18.]  This  section,  how- 
ever, does  not  apply  to  any  conveyance  executed  by  any  agent 
for  the  Holland  Land  Company,  or  by  any  agent  for  the  Pul- 
teney  Estate,  lawfully  authorized  to  convey  real  estate.  [Id., 
Sec.  19.] 

The  certificate  of  the  proof  or  acknowledgment  of  every 
conveyance,  and  the  certificate  of  the  genuineness  of  the 
signature  of  any  Judge,  Commissioner,  or  Justice  of  the  Peace, 
in  the  cases  where  such  last  mentioned  certificate  is  required, 
should  be  recorded,  together  with  the  conveyance  so  proved  or 
acknowledged  ;  and  unless  the  said  certificates  be  so  recorded, 
neither  the  record  of  such  conveyance  nor  the  transcript 
thereof  can  be  read  or  received  in  evidence.  [Id.,  Sec.  20.] 

The  jurisdiction  of  County  Judges  not  of  the  degree  of 
Counsellor  at  Law,  Commissioners  of  Deeds  for  any  city  or 
county,  and  Justices  of  the  Peace,  are  limited  to  their  respect- 
ive counties,  and  they  are  not  judicially  known  beyond  the 
confines  thereof.  Within  their  respective  counties,  how- 
ever, all  persons  are  bound  to  observe  and  recognize  their 
acts.  Their  signatures  carry  all  necessary  evidence  of  the 
matter  contained  in  their  certificates,  both  to  courts  and 
recording  officers.  But  where  the  deed  is  proved  or  ac- 
knowledged before  a  Judge  not  of  the  degree  of  Counsellor  at 
Law,  or  a  Commissioner  of  Deeds,  or  a  Justice  of  the  Peace, 
residing  in  Albany,  and  the  land  conveyed  is  in  Cayuga,  the 
Clerk  of  the  latter  county  does  not  judicially  know  their 
signatures,  and  hence  cannot  safely  record  the  deed.  But  it 
is  otherwise  with  the  Clerk  of  Albany.  He  is  bound  to  know 
their  signatures.  He  keeps  the  rolls  of  office  upon  which 
are  entered  their  names,  in  the  proper  hand  writing  of  each 


NEW-YORK.  101 

of  such  officers,  respectively,  and  by  reference  to  which,  he  is 
enabled  to  determine  not  only  that  they  have  been  duly  com- 
missioned and  sworn,  but  that  the  signature  of  any  one  of 
them  attached  to  a  certificate  of  proof  or  acknowledgment  of 
a  conveyance,  is  genuine.  Hence  his  certificate  in  such 
cases  is  required,  and  when  given  under  the  seal  of  the  county 
(an  impression  which  has  been  recorded  in  the  office  of  the 
Secretary  of  State,  and  which  is  judicially  known  throughout 
the  commonwealth,)  it  becomes  that  evidence  of  the  authen- 
ticity of  the  certificate  of  the  Judge,  Commissioner,  or  Justice, 
as  the  case  may  be,  which  all  courts  and  recording  officers 
in  the  State  are  bound  to  recognize. 

By  placing  both  certificates  upon  the  record,  together  with 
the  conveyance,  the  public,  and  all  parties  in  interest,  are 
enabled  to  determine  whether  the  conveyance  recorded  was 
properly  executed,  and  the  record  itself  is  thereby  made  evi- 
dence in  all  courts  of  justice  through  all  future  time. 

The  proximity  of  New-York  to  the  State  of  Connecticut, 
and  the  very  considerable  intercommunication  and  recipro- 
city of  their  inhabitants,  have  rendered  some  special  legisla- 
tion, in  respect  to  conveyances  executed  by  the  Treasurer  of 
that  State,  expedient.  It  is  therefore  enacted,  that  "All 
conveyances  of  real  estate,  executed  since  the  tenth  day  of 
March,  one  thousand  eight  hundred  and  twenty-five,  or 
hereafter  to  be  executed  by  the  Treasurer  of  the  State  of 
Connecticut,  which  shall  }>e  acknowledged  by  him  before 
the  Secretary  of  State  of  the  State  of  Connecticut,  and  the 
acknowledgment  of  which  shall  be  certified  by  the  said  Sec- 
retary, under  the  seal  of  the  said  State,  in  the  manner  herein 
prescribed,  may  be  recorded  in  the  proper  offices  within  this 
State,  without  further  proof  thereof;  and  every  such  convey- 
ance, or  the  record  thereof,  or  the  transcript  of  such  record, 
duly  certified,  may  be  read  in  evidence,  as  if  such  conveyance 
had  been  acknowledged  before  a  justice  of  the  supreme 
court."  [Id.,  Sec.  21.] 


102  RECORDING  DISTRICTS  IN 

It  is  the  duty  of  the  recording  officer  to  record  every  con- 
veyance entitled  to  be  recorded,  in  the  order,  and  as  of  the 
time  when  the  same  shall  be  delivered  to  him  for  that  pur- 
pose, and  shall  be  considered  as  recorded,  from  the  time 
of  such  delivery.  He  is  required  to  make  an  entry  in  the 
record  immediately  after  the  copy  of  every  conveyance  re- 
corded, specifying  the  time  of  the  day,  month,  and  year,  when 
the  said  conveyance  was  recorded,  and  to  endorse  upon  every 
conveyance  recorded  by  him,  a  certificate,  stating  the  time 
as  aforesaid  when,  and  the  book  and  page  where,  the  same 
was  recorded. 

Upon  payment  of  any  mortgage  which  has  been  received, 
the  same  may  be  discharged  upon  such  record  by  the  record- 
ing officer,  whenever  there  shall  be  presented  to  him  a  cer- 
tificate, signed  by  the  mortgagee,  his  personal  representa- 
tives or  assigns,  acknowledged  or  proved,  and  certified,  as 
hereinbefore  prescribed,  to  entitle  conveyances  to  be  record- 
ed ;  specifying  that  such  mortgage  has  been  paid,  or  other- 
wise satisfied,  or  discharged.  This  certificate  of  satisfaction, 
together  with  the  certificate  of  its  proof  or  acknowledgment, 
goes  upon  the  record  as  the  evidence  upon  which  the  Clerk 
cancels  the  record  of  the  mortgage. 

X 
XVII.       RECORDING     DISTRICTS    IN    NEW-YORK. 

EACH  county  is  a  recording  district  for  all  conveyances 
affecting  the  title  to  land  therein ;  the  County  Clerk  is,  by 
statute,  the  recording  officer ;  and  the  county  seat,  with  a 
few  exceptions,  the  location  of  his  office.  The  earliest  stat- 
ute on  this  subject  was  enacted  in  1787,  but  the  same  has  been 
several  times  amended.  The  counties  then  existing  have 
been  divided  and  subdivided  into  those  now  forming  the  po- 
litical divisions  of  the  State.  (See  following  page.)  The 
records  of  the  several  counties  contain  the  conveyances  of 
land  situated  within  them  at  the  time  of  their  execution. 

Upon  the  erection  of  new  counties,  new  records  were 


NEW-YORK.  103 

opened  for  all  subsequent  conveyances.  In  tracing  land  ti- 
tles, therefore,  from  the  county  records,  recourse  must  be  had 
to  the  records  of  that  county  which  embraced  the  land  in 
question  at  the  time  of  the  conveyance  or  conveyances 
sought.  This,  when  unaided  by  any  faithful  chronology  of 
the  several  alterations  and  changes,  is  a  task  that  is  attended 

ALBANY,  an  original  county  in  the  Colony,  erected  in 1638 

ALLEGANY  county  was  taken  from  Gem-see.  ;uul  erected  in —  1306 

BROOMK  county  was  tukcn  from  Tioga,  and  erected  in 1806 

CATTARAUGI'S  county  was  taken  faun  Gem-see,  and  erected  in —  1803 

CAYUGA  county  was  a  part  of  Onondima,  and  erected  in 1799 

CHAUTAU^UE  county  was  taken  from  Gem-see,  and  erected  in 1808 

CHEMUNG  county  wa,s  taken  from  Tioga.  and  erected  in ." 1836 

CHENANGO  county  was  taken  from  Tioga  and  Herkimcr,  and  erected  in 1798 

CLINTON  county  was  taken  from  Albany,  and  erected  in 1788 

COLUMBIA  county  was  aUo  a  part  of  Albany  county,  and  erected  in 1786 

CoRTLAND  county  was  taken  from  Onondaga,  and  erected  in 1808 

DELAWARE  county  was  taken  from  Ulster  and  Olsego,  and  erected  in — . —  1797 

DUTCHES*  county  was  an  original  county  in  the  Colony,  and  erected  in 1633 

ERIE  county  was  taken   from  Niagara,  and  erected  in 1821 

ESSEX  county  was  taken  from  Clinton,  and  eivcfd  in 1799 

FRANKM.N  c,m:;! v  was  also  taken  from  Clinton,  and  erected  in 1803 

FULTON  county  was  a  part  of  Montgomery,  and  erected  in 1337 

GENESEE  county  was  taken  from  O.itnrio.  a  .d  erected  in 1802 

GREENE  county  was  taken  from  Ulster  and  Albany,  and  erected  in 1800 

HAMILTON  county  was  taken  from  Montgomery,  and  erected  in 1816 

HERKIMER  county  was  taken  from  Montgomery,  and  erected  in 1791 

JEFFERSON  county  was  taken  from  Oneida,  and  erected  in 1805 

KINGS  county  was  an  original  coifnty  in  the  Colony,  and  erected  in 1683 

LEWIS  county  was  taken  from  Oneida,  and  erected  in —  1805 

LIVINGSTON  county  was  taken  from  Ontario  and  Genesee,  and  erected  in 1823 

MADISON  county  was  taken  from  Chenamjo,  anil  erected  in —  1806 

MONROE  county  was  taken  from  Ontario  and  Genesee,  and  rcected  in.  - 1821 

MONTGOMERY  county  was  the  ancient  Try  on  county,  and  erected  in 1784 

NEW-YORK,  the  New-Amsterdam  of  the  Dutch,  was  erected  in 1683 

NIAGARA  county  was  taken  from  Genesee,  and  erected  in 1808 

ONEIDA  county  was  taken  from  Herkimer,  and  erected  in 1798 

ONONDAGA  county  was  erected  from  the  military  tract  in  Herkimer  in 1794 

ONTARIO  county  was  set  off  from  Montgomery,  and  erected  in 1789 

ORANGE  county,  an  original  county  in  the  colony,  was  erected  in 1683 

ORLEANS  county  was  taken  from  Genesee,  and  erected  in 1824 

OSWEGO  county  was  taken  from  Oneida  and  Onondagn,  and  erected  in 1816 

OTSEGO  county  was  taken  from  Montgomery,  and  erected  in 1791 

PUTNAM  county  was  taken  from  Dutchess,  and  erected  in. 1812 

QUEENS  county,  an  original  county  in  the  Colony,  was  erected  in 1633 


104  DEVISES  IN 

with  much  embarrassment,  and  oftentimes  with  great  diffi- 
culty and  expense.  With  an  accurate  knowledge  of  the 
derivation  and  age  of  each  county,  the  title  of  any  given 
parcel  of  land  may  be  easily  traced  through  the  records  of 
the  several  counties  whose  jurisdiction  at  different  periods 
covered  it;  as  for  instance:  Cayuga  was  taken  from  On- 
ondaga,  Onondaga  from  Herkimer,  and  Herkimer  from 
Montgomery,  the  name  of  which  was  changed  from  Tryon 
county,  in  1784 ;  therefore,  the  Montgomery  records  should 
be  examined  for  any  deeds  recorded  between  1784  and 
1791,  the  Herkimer  records  for  such  as  were  recorded  be- 
tween 1791  and  1794,  the  Onondaga  records  for  such  as 
were  recorded  between  1794  and  1799,  and  the  Caynga 
records  for  such  as  have  been  recorded  since,  conveying  land 
therein. 

XVII I.      WILLS    OF    REAL    ESTATE    IN    NEW- YORK. 

THIS  species  of  conveyance  was  introduced  into  the 
Athenian  government  by  Solon,  for  the  purpose  of  breaking 
in  upon  the  order  of  succession  which  had  theretofore  re- 

RKXSSELAER  county  was  taken  from  Albany,  and  erected  in 1701 

RICHMOND  county,  an  original  county  in : the  colony,  was  erected  in 1C!!.; 

ROCKLAND  county  was  taken  from  Orange,  and  erected  in 1798 

ST.  LAWRENCE  county  was  taken  from  Oneida,  and  erected  in —  1002 

SARATOGA  county  was  taken  from  Albany,  and  erected  in 1791 

SCHOHARIE  county  was  taken  from  Albany  and  Otsego,  and  erected  in 1 79."> 

SCHENECTADY  county  was  taken  from  Albany,  and  erected  in 1809 

S  KNEC  A  county  was  taken  from  Caynga,  and  erected  in 1304 

STKI;I;EN  county  was  taken  from  Ontario,  and  erected  in 1799 

SUFFOLK  county,  an  original  county  in  the  Colony,  was  erected  in Kin:? 

SULLIVAN  county  was  taken  from  Ulster,  and  erected  in 1809 

TIOGA  county  was  taken  from  old  Montgomery,  and  erected  in 1791 

ToMl'KiNS  county  was  taken  from  Cnyngaand  Sen«ra,  :md  erected  in Iol7 

ULSTER  county,  an  original  county  in  the  Colony,  was  erected  in 1 6D3 

WARREN  county  was  set  off  from  Washington,  and  erected  in 1  !1 1  ;j 

WASHINGTON  county  was  1  he  ancient  Charlotte  counlv,  and  was  erected  in 1772 

WAYNE  county  was  taken  from  Ontario  and  Seneca,  and  erected  in 1023 

WESTCHESTER  county,  an  original  county  in  the  Colony,  was  erected  in 1633 

WYOMING  county  was  taken  from  Genesec,  and  erected  in 1841 

YATES  county  was  taken  from  Ontario,  and  erected  in 1823 


NEW-YORK.  105 

mained  unaltered  for  centuries.  The  doctrine  upon  which 
wills  were  predicated  was,  "  that  the  general  interests  of  so- 
ciety require  that  every  man  should  have  the  free  disposition, 
as  well  as  the  enjoyment,  of  his  own  property" — a  doctrine 
recognized  in  this  country  as  a  concomitant  of  civil  liberty. 

In  most  cases,  the  statute  of  descents  makes  a  just  distribu- 
tion of  one's  property  after  his  death  ;  yet  there  are  often- 
times cogent  reasons  for  a  different  apportionment.  But  as 
devises  are  allowed,  in  opposition  to  that  statute,  certain 
forms  and  ceremonies  in  their  execution  are  required,  to  the 
end  that  they  may  be  the  good  pleasure  of  a  competent 
testator,  and  not  the  result  of  imbecility,  coercion,  or  fraud. 

\\ills  were  allowed  in  the  Roman  Republic  only  when 
they  were  executed  in  the  presence  of  five  citizens,  represent- 
ing the  people  at  large.  Subsequently,  by  a  law  of  the  prae- 
tors, the  number  was  increased  to  seven,  who  were  required 
to  attest  them  by  their  signatures  and  seals.  To  these  Jus- 
tinian superadded  the  requirement,  that  one-fourth  of  the  es- 
tate should  in  all  cases  be  reserved  to  the  children  of  the 
testator,  ''  to  rebut  evidence  of  imbecility." 

Under  the  feudal  system,  no  will  was  valid  without  the 
assent  of  the  lord.  In  the  reign  of  Charles  II.  this  provision 
was  abolished,  and  with  it  military  tenures.  In  Scotland, 
until  a  recent  period,  a  will  was  void,  if  it  divested  the  ma- 
jor part  of  the  estate  from  the  lineal  heir.  The  English  rule 
on  this  subject  was  imported  into  this  country  on  the  settle- 
ment thereof,  and  became  a  part  of  the  colonial  jurispru- 
dence. The  statute  of  the  Second  Charles  is  the  groundwork 
of  ours,  and  from  which  many  sections  were  copied  verbatim. 

In  New- York,  all  persons,  except  idiots,  persons  of  unsound 
mind,  married  women  and  infants,  may  devise  their  real' es- 
tate by  a  last  will  and  testament,  and  such  devise  may  be 
made  to  any  person  capable  in  law  of  holding  real  estate. 
[2  R.  S.,  2.,  Sec.  1.]  No  corporation  can  take  real  estate  by 
devise,  unless  its  charter  expressly  authorize  it.  [Id.,  Sec.  3.] 


106 


DEVISES  IN 


The  following  provisions  of  the  statute,  are  applicable  to 
the  execution  of  wills,  and  contain  all  the  necessary  directions 
concerning  the  manner  of  their  execution. 

"  Every  last  will  and  testament  of  real  or  personal  property, 
or  both,  shall  be  executed  and  attested  in  the  following  man- 
ner: 

"  1.  It  shall  be  subscribed  by  the  testator  at  the  end  of  the 
will. 

"2.  Such  subscription  shall  be  made  by  the  testator  in  the 
presence  of  each  of  the  attesting  witnesses,  or  shall  be  ac- 
knowledged by  him  to  have  been  so  made,  to  each  of  the 
attesting  witnesses. 

"3.  The  testator,  at  the  time  of  making  such  subscription, 
or  at  the  time  of  acknowledging  the  same,  shall  declare  the 
instrument  so-subscribed  to  be  his  last  will  and  testament. 

:C4.  There  shall  be  at  least  two  attesting  witnesses,  each  of 
whom  shall  sign  his  n.ame  as  a  witness  at  the  end  of  the  will, 
at  the  request  of  the  testator."  [2  R.  S.,  7.,  Sec.  40.] 

"  The  witnesses  to  any  will,  shall  write  opposite  to  their 
names  their  respective  places  of  residence  ;  and  every  person 
who  shall  sign  the  testator's  name  to  any  will  by  his  direc- 
tion, shall  write  his  own  name  as  a  witness  to  the  will. 
Whoever  shall  neglect  to  comply  with  either  of  these  provi- 
sions, shall  forfeit  fifty  dollars,  to  be  recovered  by  any  person 
interested  in  the  property  devised  or  bequeathed,  who  will 
sue  for  the  same.  Such  omission  shall  not  affect  the  validity 
of  any  will ;  nor  shall  any  person  liable  to  the  penalty  afore- 
said, be  excused  or  incapacitated  on  that  account  from 
testifying  respecting  the  execution  of  such  will."  [Id.,  Sec. 

**•] 

"No  will  in  writing,  except  in  the  cases  hereinafter  men- 
tioned, nor  any  part  thereof,  shall  be  revoked  or  altered, 
otherwise  than  by  some  other  will  in  writing,  or  some  other 
writing  of  the  testator,  declaring  such  revocation  or  alteration, 
and  executed  with  the  same  formalities  with  which  the  will 


NEW-YORK.  107 

itself  was  required  by  law  to  be  executed ;  or  unless  such  will 
be  burnt,  torn,  canceled,  obliterated,  or  destroyed,  with  the 
intent  and  for  the  purpose  of  revoking  the  same  by  the  tes- 
tator himself,  or  by  another  person  in  his  presence,  by  his 
direction  and  consent ;  and  when  so  done  by  another  person, 
the  direction  and  consent  of  the  testator,  and  the  fact  of  such 
injury  or  destruction,  shall  be  proved  by  at  least  two  wit- 
nesses. [Id.,  Sec.  42.] 

By  this  provision  it  will  be  seen  that  the  same  formality 
is  required  in  the  execution  of  a  revocation  of  a  will,  as  in 
the  execution  of  the  will  itself.  It  must  be  signed,  witnessed 
and  published.  And  in  case  it  is  the  purpose  of  a  testator  to 
burn  or  destroy  a  will,  and  he  directs  another  person  to  do 
it,  the  latter  should  see  to  it  that  two  witnesses  may  be  pre- 
sent, to  the  end  that  they  may  testify  to  the*  consent  and 
direction  of  the  testator  as  well  as  to  the  fact  of  the  destruc- 
tion of  the  will. 

There  is  no  establish  ed/o?*w  for  a  will  of  real  estate.  If 
the  will  be  so  drawn  that  its  provisions  are  not  inconsistent 
with  each  other,  or  in  violation  of  the  laws  regulating  estates, 
and  the  same  is  intelligible  as  to  the  intent  and  design  of  the 
testator,  it  is  valid.  But  if  a  will  be  so  drawn  that  its  exe- 
cution is  rendered  impossible,  [8  Paige,  333]  or  creates  trusts, 
in  violation  of  the  law,  or  suspends  the  absolute  power  of 
alienation  of  real  estate  for  a  longer  period  than  the  continu- 
ance of  two  lives,  in  being  at  the  creation  of  the  estate,  [1 
R.  S.,  718,  Sec.  15 ;  9  Paige,  527.]  the  property  will  de- 
scend according  to  law  of  inheritance  and  descents. 

In  construing  wills,  full  effect  is  given  to  the  particular ', 
as  well  as  the  general  intent  of  the  testator,  so  far  as  the 
same  can  be  ascertained,  and  is  consistent  with  the  rules  of 
law.  And  where  a  will  contains  inconsistent  clauses,  which 
cannot  be  reconciled  to  each  other,  effect  will  be  given  to  the 
last  clause,  as  the  final  determination  of  the  testator,  unless 
the  contrary  conclusion  is  apparent.  In  the  latter  case,  both 


108  DEVISES  IN 

are  nullified,  not  being  susceptible  of  effectuation  by  execu- 
tors. [9  Paige,  Ch.  R.,  107.]  But  the  courts  seek  an  inter- 
pretation that  will  give  effect  to  the  dying  manifesto  of  the 
testator  in  respect  to  his  property,  if  the  same  can  be  deter- 
mined from  the  instrument  to  be  in  conformity  with  the  gen- 
eral laws  of  the  land.  In  most  cases,  provisions  apparently 
conflicting  may  be  reconciled  with  each  other,  or  so  deter- 
mined that  the  latter  may  be  taken  as  the  last  and  the  cori- 
troling  expression  of  the  decedent's  will  and  pleasure. 

Every  estate  and  interest  in  lands  which  is  descendible  to 
heirs  may  be  devised.  [2  R.  S.,  2,  Sec.  2.]  This  provision 
was  taken  from  that  of  England,  which  provided  that  all 
and  singular  persons  having  any  manors,  lands,  tenements, 
or  hereditaments  of  the  estate  of  inheritance,  should  have 
full  power  to.  will  the  same.  [Stat.  32,  Hen.  VIII.,  Chap. 
1.]  According  to  Blackstone,  the  words  lands,  tenements 
and  hereditaments,  include  "whatever  may  be  inherited,"  be 
it  corporeal,  incorporeal,  real,  personal,  or  mixed.  [2  Bl. 
Com.,  17. J  As  the  right  of  entry  would  descend  to  the  heir, 
it  follows  as  a  concomitant  of  a  devise  by  will,  thc.1  the  heir 
under  the  will  is  invested  with  that  right. 

But  the  testator  cannot  divest  his  widow  of  her  dower  in 
his  real  estate  by  will,  except  she  elect  to  take  such  pecunia- 
ry provision  or  jointure  as  he  shall  see  fit  to  provide  for  her. 
The  statute  invests  her  with  an  estate  in  dower,  in  and  to 
one-third  part  of  all  the  lands  whereof  her  husband  was  seiz- 
ed at  any  time  during  the  marriage,  [1  R.  S.,  732,]  and  be- 
ing vested,  her  husband  has  not  the  power  to  devise  her  es- 
tate, unless  by  adultery  she  shall  have  forfeited  the  right, 
and  the  marriage  for  that  reason  has  been  dissolved.  To 
protect  the  wife  in  the  enjoyment  of  her  rights,  is  the  leading 
purpose  of  the  statutes  regulating  descents;  nor  do  those 
concerning  wills  in  any  respect  weaken  her  claim.  Yet,  if 
her  husband  die,  leaving  a  will  which  makes  pecuniary  pro- 
vision for  her,  or  devises  particular  lands  to  her,  in  lieu  of 


NEW-YORK.  109 

her  dower  in  all,  she  is  obliged  to  make  her  election,  whether 
she  will  take  the  lands  so  devised,  or  the  provision  so  made, 
or  whether  she  will  be  endowed  of  the  lands  of  her  husband. 
[1  R.  S.,  734,  Sec.  13.]  This  election,  however,  she  is  com- 
pelled to  make  within  one  year,  if  she  desires  to  retain  her 
dower  in  the  lands  :  for  unless  she  make  such  election,  she 
shall  be  deemed  in  law  to  have  chosen  to  receive  in  lieu 
thereof  the  devises  or  bequests  contained  in  the  will.  [Id., 
Sec.  14.] 

Not  only  is  a  widow  entitled  to  dower  in  the  lands  of  her 
husband  at  his  decease,  but  she  is  entitled  to  dwell  in  the 
chief  house  of  her  husband  forty  days  after  his  death,  with- 
out being  liable  to  pay  any  rent  therefor,  and  to  have  mean- 
while her  reasonable  sustenance  out  of  his  estate.  [Id., 
Sec.  17.] 

It  is  usual  for  the  testator  to  designate  and  appoint  the  ex- 
ecutors of  his  will.  This,  however,  may  be  omitted,  and  in 
such  case  a  suitable  person  or  persons  will  be  appointed  by 
the  surrogate  to  execute  its  provisions,  and  who  will  be  re- 
quired to  give  security  for  the  performance  of  the  trust.  And 
though  the  testator  do  appoint  executors,  if  at  the  time  of 
his  decease  they  be  dead,  or  have  departed  the  country,  or 
are  tinder  the  age  of  twenty-one  years,  or  incapable  in  law 
of  making  a  contract,  (except  married  women,)  or  an  alien, 
not  being  an  inhabitant  of  this  State,  or  shall  have  been  con- 
victed of  an  infamous  crime,  or  shall  be  adjudged  incompe- 
tent, administrators  are  required  to  be  appointed  by  the  Sur- 
rogate. So  also,  in  case  all  the  executors  named  renounce 
their  appointment. 

The  testator  may  appoint  guardians  or  a  guardian  for  his 
infant  children  in  and  by  his  will.  The  statute  provides 
that  "  every  father,  whether  of  full  age  or  a  minor,  of  a  child 
likely  to  be  born,  or  of  any  living  child  under  the  age  of 
twenty-one  years,  and  unmarried,  may  by  his  deed,  or  LAST 
WILL,  duly  executed,  dispose  of  the  ^custody  and  tuition  of 


110  DEVISES  IN 

such  child  during  its  minority,  or  for  any  less  time,  to  any 
person  or  persons,  in  possession,  or  remainder."  [2  R.  S., 
152,  Sec.  11.]  A  testamentary  guardian  may  be  appointed, 
notwithstanding  a  previous  appointment,  by  deed  of  another 
person,  for  the  appointment  by  will,  when  it  takes  effect, 
works  a  revocation  of  that  made  by  a  deed.  [3  Kent.  A 
testamentary  guardian  is  authorized  to  take  the  custody  and 
management  of  the  profits  of  the  real  estate  of  the  infant, 
until  the  latter  arrives  at  the  age  of  twenty-one  years. 

In  executing  a  will,  any  mark  which  the  testator  uses  as 
his  signature,  will  be  accredited  as  a  valid  subscription.  If 
another  write  the  testator's  name,  at  his  request,  the  signa- 
ture will  be  valid,  provided  such  person  also  sign  his  own 
name  as  a  witness,  the  maxim  being  tl  Quifacit  per  alium, 
facit per  se"  But  care  should  be  taken  that  the  beneficia- 
ries are  not  called  by  the  testator  as  witnesses.  For  it  is 
provided  that  u  if  any  person  shall  be  a  subscribing  witness 
to  the  execution  of  any  will,  wherein  any  beneficial  devise, 
legacy,  or  interest,  or  appointment  of  any  real  or  personal 
estate,  shall  be  made  to  such  witness,  and  such  will  cannot 
be  proved  without  the  testimony  of  such  witness,  the  said 
devise,  legacy,  interest,  or  appointment  shall  be  void,  so  far 
only  as  concerns  such  witness,  or  any  person  claiming  under 
him  ;  and  such  person  shall  be  a  competent  witness,  and 
compellable  to  testify  respecting  the  execution  of  the  said 
will,  in  like  manner  as  if  no  such  devise  or  bequest  had  been 
made."  [2  R.  S.,  9,  Sec.  50.] 

No  particular  form  of  words  is  necessary  to  be  used  by  the 
testator  in  declaring  the  instrument  signed  by  him  to  be  his 
last  will  and  testament.  It  is  sufficient,  if  he  actually  com- 
municate to  the  attesting  witnesses  the  information  that  he 
knows  and  understands  the  nature  of  the  instrument  he  is 
executing,  and  intends  distinctly  to  recognize  it  as  his  will. 
He  must  in  some  language  indicate  to  the  witnesses,  that  it 
is  his  will,  so  that  they  may  understand  him.  It  has  been 


NEW-YORK.  Ill 

held,  that  where  the  attestation  clause  recites  that  the  will 
was  executed  and  published  by  the  testator,  as  his  last  will 
and  testament,  in  the  presence  of  the  witnesses,  specifying, 
that  all  the  requisite  formalities  were  complied  with,  and  the 
same  is  read  over  in  the  presence  and  hearing  of  the  testator 
and  witnesses,  and  understood  by  him  and  them,  a  request 
from  the  testator,  that  they  will  subscribe  the  same,  as  wit- 
nesses to  his  execution  thereof,  will,  of  itself,  be  a  sufficient 
publication  of  the  instrument,  as  his  last  will  and  testament. 
[8  Paige's  R.,  4SS."*] 

XIX.  THE  PROBATE  AND  RECORDING  OF  WILLS  OF  REAL 
ESTATE  IN  NEW- YORK. 

Surrogates,  or  if  there  be  no  such  officer,  then  First  Judges 
of  counties,  are  invested  with  authority  to  take  proof  of  the 
execution  of  wills,  and  to  admit  the  same  to  probate  and 
record  ;  First,  where  the  testator  was  at  the  time  of  his  death 

*  Wills  are  revoked  by  the  birth  of  lawful  i-»sue  afterward,  ui.less  some  settlement 
shall  have  been  made  for  such  issue,  in  the  will  or  otherwise.  [2  R.  S.,  8,  Sec.  43  ; 
1  Wash.,  140.] 

A  will  of  an  unmarried  woman  is  revoked  by  her  subsequent  marriage.  [Idem* 
44.] 

Parol  evidence  of  the  revocation  of  a  will  is  inadmissible.     [2  John,  31.] 

A  mere  intention  does  not  work  a  revocation.      [9  Cowan,  203.] 

The  slightest  degree  of  cancelution,  with  intent  to  revoke,  will  operate  as  a  re- 
vocation. [4  Cowan,  433.] 

The  mere  act  of  canceling  a  will  is  nothing,  unless  it  be  done  animo  revocandi. 
[7  John,  394.] 

The  mental  sanity  of  the  testator  is  presumed,  until  the  contrary  appears.  [5 
John,  144.] 

Duress  may  be  proved  by  parol,  but  not  the  testator's  own  declarations,  as  to 
that  point.  [2  John,  31.] 

A  devise  to  a  witness  or  his  wife,  is  void.     [2  John,  C.  314.] 

An  obliteration  of  a  will  is  not  per  sc  a  revocation.     [3  McCord,  282.] 

An  agreement  made  by  the  testator  to  cpnvey  any  property  by  him  devised,  does 
not  work  a  revocation ;  but  the  same  will  pass  to  the  legatee,  subject  to  the  con- 
dition imposed  by  the  testator's  contract.  [2  R.  S.,  8,  Sec  45.] 

An  incumbrance,  executed  by  the  testator,  upon  premises  devised,  does  not  work 
a  revocation.  [Idem,  46.] 

A  legal  instrument,  wholly  inconsistent  with  a  former  devise,  executed  by  a  testa- 
tor, does  operate  as  a  revocation.  [Idem,  47.] 


112  PROBATE  AND  RECORDING  OF  WILLS  IN 

an  inhabitant  of  the  county  of  which  the  officer  is  Surrogate  or 
Judge ;  Secondly,  where  the  testator  was  a  non-resident  of  the 
State,  but  shall  have  died  in  the  said  county,  leaving  assets 
therein ;  Thirdly,  where  the  testator  was  a  non-resident  of  the 
State,  and  shall  have  died  out  of  the  State,  but  hath  left  assets 
in  the  said  county;  Fourthly,  where  the  testator  was  a  non- 
resident, and  shall  have  died  out  of  this  State,  leaving  assets 
that  have  come  into  the  said  county. 

An  executor,  heir,  devisee,  legatee,  or  other  person  inter- 
ested in  any  will,  may  apply  to  the  Surrogate  or  Judge  for 
probate  of  the  same,  who  has  power  to  cause  the  will  to  be 
produced,  in  case  it  is  not  in  the  possession  of  the  applicant. 
Application  being  thus  made,  it  is  the  duty  of  the  officer  "  to 
ascertain,  if  the  will  relate  exclusively  to  real  estate,  the 
names  and  places  of  residence  of  the  heirs  of  the  testator, 
unless  upon  diligent  inquiry  the  same  cannot  be  ascertained ; 
or  if  the  will  relate  to  both  real  and  personal  estate,  the  names 
and  places  of  residence  of  the  heirs,  widow,  and  next  of  kin 
of  the  testator,  unless  upon  diligent  inquiry  the  same  cannot 
be  ascertained."  [Sess.  Laws  1837.  Sec.  5.]  And  he  shall 
also  ascertain  whether  any  and  who  of  the  persons  men- 
tioned in  the  preceding  section,  are  minors,  and  the  names 
and  places  of  residence  of  their  general  guardians,  if  they 
have  any ;  and  if  there  be  no  general  guardian  within  this 
State,  the  Surrogate  shall,  by  an  order  to  be  entered,  appoint 
a  special  guardian  for  such  minor,  to  take  care  of  his  interest 
in  the  premises,  and  the  written  consent  of  every  person  so 
appointed  special  guardian,  to  serve  as  such,  shall  be  filed 
with  the  Surrogate.  The  testamentary  guardian  named  in 
the  will  to  be  proved,  shall  not  for  this  purpose  be  deemed  a 
general  guardian.  [Id.,  Sec.  6.]  Thereupon  it  is  the  duty  of 
the  officer  to  issue  citations,  requiring  the  said  widow,  heirs, 
and  next  of  kin,  or  such  of  them  as  the  statute  requires  in 
the  premises,  to  appear  on  a  day  therein  mentioned,  and  at- 
tend the  probate  of  the  will,  The  statute  requires  the  citation 


NEW.YORK.  113 

to  bs  personally  served  on  such  of  the  persons  to  whom  it  is 
diiTcte-1,  as  reside  in  the  same  county  with  the  Surrogate,  or 
an  adjoining  county,  at  least  eight  days  hefore  the  day  for 
proving  the  will ;  or  by  leaving  a  copy  at  the  residence  of 
such  person  with  some  individual  of  suitable  age  and  discre- 
tion ;  and  in  like  manner,  upon  persons  residing  in  any  other 
county  in  the  State,  at  least  fifteen  days  before  the  day  of 
hearing;  and  also  in  like  manner,  upon  persons  residing 
without  the  State,  not  less  than  fifteen  nor  more  than  ninety 
days  before  the  day  of  hearing,  or  by  publishing  a  copy  of 
.the  citation  in  the  State  paper  for  six  weeks  previous  to  the 
day  appointed  for  taking  the  proof.  [Sess.  Laws  1837,  Chap. 
460,  as  amended  in  1840.] 

On  the  day  mentioned  in  said  citations,  or  such  further  day 
as  may  be  appointed,  upon  proof  being  made  of  the  due  ser- 
vice of  the  citation,  the  surrogate  shall  cause  the  witnesses 
to  be  examined  before  him.  All  such  proofs  and  examina- 
tions shall  be  reduced  to  writing.  Two  at  least  of  the  wit- 
nesses to  such  will,  if  so  many  are  living  in  this  State,  and 
of  sound  mind,  and  are  not  disabled  from  age,  sickness,  or 
infirmity,  from  attending,  shall  be  produced  and  examined ; 
and  the  death,  absence,  insanity,  sickness,  or  other  infirmity 
of  any  of  them,  shall  be  satisfactorily  shown  to  the  Surrogate 
taking  such  proof:  and  the  Surrogate  shall  inquire  particu- 
larly into  the  facts  and  circumstances,  before  establishing  the 
same,  or  granting  letters  testamentary  or  of  administration 
thereof.  [Id.,  Sec.  10.]  In  case  the  proof  of  any  will  is  con- 
tested, and  any  person  having  the  right  to  contest  the  same 
shall,  before  probate  made,  file  with  the  Surrogate  a  request 
in  writing,  that  all  the  witnesses  to  such  will  shall  be  ex- 
amined; then  all  the  witnesses  to  such  will,  who  are  living 
in  this  State  and  of  sound  mind,  and  who  are  not  disabled 
from  age,  sickness,  or  infirmity  from  attending,  shall  be  pro- 
duced and  examined  ;  and  the  death,  abs3nce,  insanity, 
sickness  or  other  infirmity  of  any  of  them,  shall  be  satisfuc- 
6* 


114          OF  REAL  ESTATE  BY  DESCENT  IN 

torily  shown.  [Id.,  Sec.  11.]  This  may  be  done,  although 
the  will  is  not  contested.  The  Surrogate  is  invested  with 
power  to  issue  subposnas,  and  adjourn  the  proceedings  at  his 
discretion,  until  all  requisite  proof  can  be  adduced  by  the 
parties  interested  in  sustaining  or  defeating  the  will. 

After  the  witnesses  to  the  will,  and  such  others  as  shall 
have  been  produced,  shall  have  been  sworn  and  examined, 
and  the  Surrogate  is  judicially  satisfied  that  the  will  was 
duly  executed,  that  the  testator,  at  the  time  of  executing  the 
same,  was  in  all  respects  competent  to  devise  real  estate,  and 
not  under  restraint,  it  is  his  duty  to  record  the  will,  together 
with  the  proof  and  examinations  taken  in  regard  to  proving 
the  same,  and  to  endorse  upon  the  will  a  certificate,  under 
his  hand  and  seal  of  office,  showing  that  such  will  has  been 
admitted  to  probate.* 

XX.     THE  TITLE  TO  REAL  ESTATE  BY  DESCENT. 

The  statute  [1  R.  S.,  742]  provides  that  the  real  estate  of 
every  person  who  shall  die  without  devising  the  same,  shall 
descend  in  the  following  manner,  namely  :  First,  to  his  lineal 
descendants ;  Secondly,  to  his  father ;  Thirdly,  to  his  mother ; 
and  Fourthly,  to  his  collateral  relatives ;  subject,  in  all  cases,  to 
the  rules  and  regulations  hereinafter  prescribed.  If  the  intes- 
tate leave  several  descendants  in  the  direct  line  of  lineal  de- 
scent, and  all  of  equal  degree  of  consanguinity  to  such  intestate, 
the  inheritance  will  descend  to  such  persons  in  equal  parts, 

*It  is  the  duty  of  the  Surrogate  to  proceed  to  the  dwelling  house  of  tin  aged,  sick, 
or  infirm  witness,  and  there  take  his  or  her  testimony.  [Sess.  Laws  1841 ,  Chap.  129.  ] 

No  will  shall  be  deemed  proved,  until  all  the  witnesses  residing  within  this  State 
shall  have  been  examined.  [Idem.] 

If  all  the  witnesses  be  dead,  absent,  or  incompetent  to  testify,  the  will  cannot  be 
recorded  as  a  will  of  real  estate.  [Idem.] 

When  one  or  more  are  examined,  and  the  others  are  dead,  insane,  or  absent,  then 
syich  proof  of  the  hand-writing  of  the  testator,  and  of  other  circumstances,  as  would 
be  required  in  a  court,  shall  be  received.  [Sess.  Laws  1840.] 

Where  witnesses  to  a  will  all  reside  out  of  the  State,  a  court  of  equity  can  issue 
a  commission  to  the  State  where  the  witnesses  reside,  and  thereby  obtain  their  testi- 
mony. [1  Barbour.] 


NEW-YORK.  115 

however  remote  from  the  intestate  the  common  degree  of 
consanguinity  may  be.  If  any  of  the  children  of  such  intes- 
tate be  living,  and  any  be  dead,  the  inheritance  will  descend 
to  the  children  who  are  living,  and  to  the  descendants  of  such 
children  as  shall  have  died ;  so  that  each  child  who  shall  be 
living,  shall  inherit  such  share  as  would  have  descended  to 
him,  if  all  the  children  of  the  intestate  who  shall  have  died 
leaving  issue,  had  been  living  ;  and  so  that  the  descendants 
of  each  child  who  shall  be  dead,  shall  inherit  the  share  which 
their  parent  would  have  received  if  living.  In  case  the 
intestate  shall  die  without  lawful  descendants,  and  leaving 
a  father,  then  the  inheritance  will  go  to  such  father,  unless 
the  inheritance  came  to  the  intestate  on  the  part  of  his  mother, 
and  such  mother  be  living  ;  but  if  such  mother  be  dead,  the 
inheritance  descending  on  her  part  goes  to  the  father  for  life, 
and  the  reversion  to  the  brothers  and  sisters  of  the  intestate 
and  their  descendants,  according  to  the  law  of  inheritance 
by  collateral  relatives  hereinafter  provided  ;  if  there  be  no 
such  brothers  or  sisters,  or  their  descendants,  living,  such 
inheritance  will  descend  to  the  father  in  fee. 

If  the  intestate  shall  die  without  descendants,  and  leaving 
no  father,  or  leaving  a  father  not  entitled  to  take  the  inheri- 
tance, and  leaving  a  mother  and  a  brother  or  sister,  or  the 
descendant  of  a  brother  or  sister,  then  the  inheritance  will 
descend  to  the  mother  during  her  life,  and  the  reversion  to 
such  brothers  and  sisters  of  the  intestate  as  may  be  living, 
and  the  descendants  of  such  as  may  be  dead,  according  to 
the  same  law  of  inheritance.  If  the  intestate  in  such  case  shall 
have  no  brother  or  sister,  nor  any  descendants  of  any  brother 
or  sister,  the  inheritance  shall  descend  to  the  mother  in  fee. 

If  there  be  no  father  or  mother  capable  of  inheriting  the 
estate,  it  will  descend,  in  the  cases  hereinafter  specified,  to 
the  collateral  relatives  of  the  intestate ;  and  if  there  be  seve- 
ral such  relatives,  all  of  equal  degree  of  consanguinity  to  the 
intestate,  the  inheritance  will  descend  to  them  in  equal  parts, 


116  OF  REAL  ESTATE  BY  DESCENT  IN 

however  remote  from  the  intestate  the  common  degree  of  con- 
sanguinity may  be.  If  all  the  brothers  and  sisters  of  the 
intestate  he  living1,  the  inheritance  will  descend  to  such 
brothers  and  sisters ;  if  any  of  them  be  living,  and  any  be 
dead,  then  to  the  brothers  and  sisters  and  every  of  them  who 
are  living,  and  to  the  descendants  of  such  brothers  and  sis- 
ters as  shall  have  died;  so  that  each  brother  or  sister  who 
shall  be  living,  shall  inherit  such  share  as  would  have  de- 
scended to  him  or  her,  if  all  the  brothers  and  sisters  of  the 
intestate  who  shall  have  died  leaving  issue,  had  been  living, 
and  so  that  such  descendants  shall  inherit  the  share  which 
their  parent  would  have  received  if  living. 

In  respect  to  the  other  lineal  descendants  of  the  brothers 
and  sisters  of  the  intestate,  to  the  remotest  degree,  it  is  pro- 
vided that  the  same  law  of  inheritance  shall  prevail.  [Id., 
Sec.  91.]  But  if  there  be  no  heir  entitled  to  take  under  any 
of  the  above  provisions,  and  the  inheritance  came  to  the 
intestate  on  the  part  of  the  father,  the  same  descends  to  the 
father's  brothers  and  sisters  and  their  heirs  ;  or  if  it  came  to 
the  intestate  on  the  part  of  the  mother,  the  inheritance  will 
descend  to  the  mother's  brothers  and  sisters  and  their  heirs. 
in  either  case,  if  the  parent  through  whom  the  estate  came 
to  the  intestate,  have  no  brothers  or  sisters,  nor  descendants 
of  brothers  or  sisters,  the  estate  will  go  to  the  brothers  and 
sisters  of  the  other  parent,  and  to  their  descendants.  [Id., 
Sec.  11,  12.]  Where  the  estate  came  from  neither  the  fa- 
ther or  mother  of  the  intestate,  then  the  brothers  and 
sisters  of  both  will  take  in  equal  shares  the  same  as  if  they 
were  brothers  and  sisters  of  the  intestate.  If  any  be  dead, 
their  descendants  inherit  the  share  that  their  parent  would 
have  received  if  living.  [Id.,  Sec.  13.]  If  the  intestate  shall 
have  been  an  illegitimate,  and  shall  have  died  without  issue, 
his  mother,  or  if  she  be  dead,  the  relatives  on  the  part  of  his 
mother,  inherit  the  estate.  [Id.,  Sec.  14.] 

Relatives  of  the  half  blood  inherit  equally  with  those  of 


NEW-YORK.  117 

the  whole  blood,  and  the  same  rule  applies  to  their  descend- 
ants; unless  the  inheritance  came  hy  descent,  devise,  or  gift 
of  some  one  of  his  ancestors,  in  which  case  all  who  are  not 
of  the  blood  of  such  ancestor,  are  excluded.  Posthumous 
children  inherit  the  same  as  if  born  in  the  life-time  of  the 
intestate  and  had  survived  him.  [Id.,  Sec.  18.]  Illegitimate 
children  and  relatives  cannot  inherit  under  any  of  the  fore- 
going provisions,  ns  they  are  said  to  have  no  inheritable 
blood.  [4  Kent,  400.] 

XXI.     LAND    TAXES    IN    NEW-YORK. 

All  lands  in  the  State,  except  such  as  belong  to  the  State, 
or  the  United  States,  public  library  associations,  or  whereon 
colleges,  academies,  seminaries,  churches,  schools,  court- 
houses, jails,  poor-houses,  alms-houses,  houses  of  industry, 
of  refuse  and  for  correction  are  erected,  are  subject  to  taxation. 
The  levy  is  made  by  the  Board  of  Supervisors  of  each  county, 
and  the  rate  bill  is  apportioned  from  the  assessment  rolls 
prepared  by  the  Assessors  of  towns,  between  the  first  days  of 
May  and  July  in  each  year.  In  preparing  assessment  rolls 
the  Assessors  arc  required  to  enter  thereon  the  name  of  every 
taxable  inhabitant  in  the  town,  with  the  quantity  and  full 
value  of  the  land  to  be  taxed  to  each  person,  together  with  all 
non-resident  lands,  properly  described  and  distinguished. 
[IR.S.,382.] 

The  statute  requires  the  assessment  rolls  to  be  completed 
on  or  before  the  first  day  of  September,  in  every  year,  and 
a  fair  copy  thereof  to  be  made  and  left  with  one  of  their 
number;  and  notices  setting  forth  that  such  Assessors  have 
completed  the  roll,  and  that  a  copy  lias  been  left  with  one 
of  their  number,  naming  him,  at  some  place  to  be  specified 
therein,  where  the  same  may  be  seen  and  examined  by  any 
inhabitant  of  the  town  or  ward  for  twenty  days,  and  that  at 
the  expiration  thereof,  the  Assessors  will  review  their  assess- 
ments on  the  application,  of  any  person  conceiving  himself 


118  LAND  TAXES  IN 

aggrieved,  to  be  posted  in  three  public  places  in  the  town. 
[Id.,  384,  Sec.  19.]  At  the  time  and  place  specified  in  the 
notice,  the  Assessors  are  required  to  meet  and  review  their 
assessments,  and  to  alter  and  correct  the  same  on  due  proof 
of  any  error  therein,  and  upon  the  completion  thereof  to  cer- 
tify to  their  correctness,  and  deliver  the  roll  to  the  Supervisor  of 
their  town  before  the  first  day  of  October,  who  is  required  to 
deliver  the  same  to  the  Board  of  Supervisors  at  their  next 
meeting,  which  is  on  the  second  Tuesday  of  November,  in 
each  year.  [Id.,  20  to  27.] 

The  Board  of  Supervisors  of  each  county,  at  their  annual 
meeting,  are  required  to  examine  the  rolls  of  the  several 
towns,  and  to  equalize  the  same,  so  that  the  valuations  in 
one  town  shall  bear  a  just  relation  to  those  in  another  ;  and 
also  to  determine  the  amount  of  money  to  be  levied  for  State, 
county  and  town  purposes,  to  apportion  the  same  among  the 
several  towns  of  the  county,  and  to  prepare,  sign,  and  cause 
to  be  delivered  to  the  several  Collectors  of  towns,  warrants 
for  the  collection  thereof.  [Id.,  28  to  31.] 

The  Collector,  upon  receiving  any  warrant  for  the  collec- 
tion of  taxes,  is  required  to  cause  notices  of  the  reception 
thereof  to  be  posted  up  in  five  public  places  in  the  ward  or 
town,  designating  therein  some  central  and  convenient  place 
in  such  town,  where  he  will  attend  from  nine  o'clock  in  the 
forenoon,  till  four  o'clock  in  the  afternoon,  at  least  once  in 
each  week  for  thirty  days,  on  a  day  also  to  be  specified  in 
such  notice,  for  the  purpose  of  receiving  payment  of  taxes ; 
at  which  time  and  place  he  is  required  to  attend  accordingly, 
and  receive  any  taxes  offered  to  be  paid,  with  one  per  cent, 
fees.  And  if  any  taxes  remain  unpaid,  at  the  expiration  of 
said  thirty  days,  it  is  then  his  duty  to  proceed  and  collect  the 
same  of  the  several  and  respective  persons  named  in  the  tax 
list,  with  five  per  cent  fees.  [Sess.  Laws  1845,  189.]  On 
the  first  day  of  February  next  succeeding  the  time  when  he 
shall  have  received  his  warrant,  he  is  required  to  pay  over 


NEW-YORK.  119 

the  money  collected  to,  and  settle  with,  the  County  Treasurer 
of  his  county.  [1  R.  S.,  386,  Sec.  37.] 

It  is  further  provided,  that  in  case  any  person  shall  refuse 
or  neglect  to  pay  the  tax  imposed  on  him,  the  Collector  shall 
levy  the  same  by  distress  and  sale  of  the  goods  and  chattels 
of  the  person  who  ought  to  pay  the  same,  or  of  any  goods 
and  chattels  in  his  possession,  wheresoever  the  same  may  be 
found  within  the  district  of  the  Collector,  arid  that  no  claim 
of  property  made  by  any  other  person  shall  be  effectual  to 
prevent  a  sale.  In  default  of  payment  or  collection  of  taxes 
on  any  farm  assessed  to  a  resident,  the  Collector  is  required 
to  return  the  same  to  the  Supervisor,  who  will  cause  the 
same  to  be  added  to  the  assessment  of  the  following  year. 
[Id.,  392,  Sec.  27.]  If  the  taxes  of  non-resident  lands  are  not 
paid  to  the  Collector  in  the  life-time  of  his  warrant,  the 
amount  thereof  is  required  to  be  credited  to  the  Collector,  by 
the  County  Treasurer,  who  thereupon  and  before  the  first 
day  of  April  ensuing,  is  required  to  transmit  a  certificate 
thereof  to  the  Comptroller  of  the  State,  who,  thereupon,  is  re- 
quired to  credit  the  county  with  the  amount  of  said  taxes 
in  his  account  with  such  county,  for  taxes  due  the  State. 
[Id.,  Sec.  30.] 

"  Whenever  any  tax,  charged  on  lands  returned  to  the 
Comptroller,  and  the  interest  thereon  shall  remain  unpaid 
for  two  years  from  the  first  day  of  May  following  the  year  in 
which  the  same  was  assessed,  the  Comptroller  shall  proceed 
to  advertise  and  sell  such  land  in  the  manner  hereinafter  pro- 
[vided.  Id.,  Sec.  52.] 

Taxes  are  perpetual  liens  upon  real  estate,  and  take  prece- 
dence of  all  other  incumbrances. 

XXII.  LAND  TAX  FORFEITURES  AND  REDEMPTIONS  IN 
NEW-YORK. 

A  forfeiture  of  lands  is  the  penalty  of  non-payment  of  land 
taxes  and  neglect  of  redemption.  It  however  is  rather  the 


120        LAND  TAX  FORFEITURES  AND  REDEMPTIONS  IN 

result  of  a  valid  conveyance  by  the  Comptroller,  and  a  com- 
pliance with  the  statute  by  the  purchaser,  than  of  any  law 
declaring  sach  penalty.  The  people,  through  their  organs, 
having  the  right  to  impose  taxes  upon  lunds,  and  to  transfer 
the  same  to  a  stranger,  in  case  of  non-payment  of  such  tax 
by  the  owner,  a  forfeiture  is  wrought  out  for  the  latter  as 
destructive  to  his  interests  as  any  which  might  have  been, 
in  terms,  declared.  The  forfeiture  is  not  absolute  until  title 
in  another  through  the  Comptroller's  deed  becomes  perfect. 
If  the  owner  have  neglected  to  pay  his  taxes  to  the  Collector, 
he  may  pay  them  to  the  County  Treasurer,  at  any  time  before 
he  shall  have  made  his  returns  thereof  to  the  Comptroller, 
and  to  the  State  Treasurer  thereafter  within  two  years  from 
the  ensuing  first  day  of  May,  or  before  actual  sale  by  the 
Comptroller.  If  payment  be  not  then  made,  the  sale  takes 
place  under  the  sixty-third  section  of  title  three  of  chapter 
thirteen  .of  the  Revised  Statutes,  which  is  as  follows:  "On 
the  day  mentioned  in  the  notices,  the  Comptroller  shall  com- 
mence the  sale  of  such  lands,  and  shall  continue  the  same 
from  day  to  day  until  so  much  of  each  parcel  assessed  shall 
be  sold  as  will  be  sufficient  to  pay  the  taxes,  interest,  and 
charges  thereon.  The  purchasers  at  such  sales,  shall  pay 
the  amount  of  their  respective  bids  to  the  Treasurer,  within 
forty  eight  hours  after  the  sale ;  and  if  any  such  purchaser 
shall  refuse  or  neglect  to  pay  the  same  within  that  time,  the 
Comptroller  shall  state  an  account  against  him,  and  shall 
deliver  it  to  the  Attorney  General,  who  shall  be  entitled  to 
recover  the  same  from  the  purchaser  by  auction,  in  the  name 
of  the  People  of  this  State;  and  for  that  purpose,  he  shall 
forthwith  cause  a  suit  to  be  instituted  therefor.  After  such 
payment  shall  have  been  made,  the  Comptroller  shall  give 
to  the  purchaser  of  any  such  lands,  a  certificate  in  writing, 
describing  the  lands  purchased,  the  sum  paid,  and  the  time 
when  the  purchaser  will  be  entitled  to  a  deed."  But,  as  has 
been  intimated,  the  owner  or  occupant,  or  any  other  person, 


NEW-YORK.  121 

may  redeem  at  any  time  within  two  years  after  the  sale,  upon 
paying  to  the  Treasurer  the  amount  of  the  purchaser's  bid, 
and  ten  per  cent  per  annum  thereon  from  the  date  of  the 
Comptroller's  certificate  to  the  purchaser.  "If  no  person  shall 
redeem  such  lands  within  such  two  years,  the  Comptroller 
shall,  at  the  expiration  thereof,  execute  to  the  purchaser,  his 
heirs  or  assigns,  in  the  name  of  the  People  of  this  State,  a 
conveyance  of  the  real  estate  so  sold,  which  shall  vest  in  the 
grantee  an  ahsolute  estate  in  fee  simple,  subject,  however,  to 
all  the  claims  which  the  people  of  this  State  may  have  thereon 
for  taxes  or  other  liens  or  incumbranccs.  [1  R.  S.  3993  Sec.  80.] 
The  language  of  the  foregoing  section  is  qualified  by 
other  sections  whenever  the  land  sold  is  occupied.  For  it  is 
provided  that  whenever  any  land  sold  for  taxes  by  the 
Comptroller,  and  conveyed  as  hereinbefore  provided,  shall 
at  the  time  of  conveyance  be  in  the  actual  occupancy  of  any 
person,  the  grantee  to  whom  the  same  shall  have  been  con- 
veyed, or  the  person  claiming  under  him,  shall  serve  a 
written  notice  on  the  person  occupying  such  land,  stating  in 
substance  the  sale  and  conveyance,  the  person  to  whom  made, 
and  the  amount  of  the  consideration  money  mentioned  in  the 
conveyance,  with  the  addition  of  thirty-seven  and  a  half  per 
cent  on  such  amount,  and  the  further  addition  of  the  sum 
paid  for  the  Comptroller's  deed  ;  and  stating  also,  that  unless 
such  consideration  money,  and  the  said  thirty-seven  and  a 
half  per  cent,  together  with  the  sum  paid  for  the  Comptroller's 
deed,  shall  be  paid  into  the  treasury  for  the  benefit  of  such 
grantee,  within  six  months  after  the  service  of  such  notice, 
that  the  conveyance  of  the  Comptroller  will  become  abso- 
lute, and  the  occupant,  and  all  others  interested  in  the  land, 
be  forever  barred  from  all  right  or  title  thereto.  [Id.,  Sec.  84.] 
Such  notice  may  be  served  personally,  or  by  leaving  the  same 
at  the  dwelling-house  of  the  occupant,  with  any  person  of 
suitable  age  and  discretion  belonging  to  the  family.  [Id., 
Sec.  85.]  "  The  occupant,  or  any  other  person,  may,  at  any 
6 


122  LIMITATION  OF  ACTIONS  IN 

time  within  the  six  months  mentioned  in  such  notice,  redeem 
the  said  land,  by  paying  into  the  treasury  such  consideration 
money,  with  the  addition  of  thirty-seven  and  a  half  per  cent 
thereon,  and  the  amount  that  shall  have  been  paid  for  the 
Comptroller's  deed ;  and  every  such  redemption  shall  be  as 
effectual  as  if  made  before  the  conveyance  of  the  lands  sold." 
[Id.,  Sec.  86.J 

By  an  act  passed  in  1830,  it  was  provided  that  the  time  for 
redeeming  any  such  lands  should  be  within  six  months  from 
and  after  the  time  of  filing  in  the  Comptroller's  office  of  the 
evidence  of  the  service  of  the  said  notice,  and  not  the  six 
months  mentioned  in  the  statute  above  cited ;  so  that  the 
occupant  of  any  such  lot,  or  any  other  person,  may  redeem 
the  same  within  six  months  from  the  day  of  the  filing  in  the 
Comptroller's  office,  the  proof  of  the  service  of  said  notice. 
The  receipt  of  the  Treasurer,  countersigned  by  the  Comp- 
troller, and  accompanied  by  a  certificate  of  the  Comptroller, 
under  seal,  is  evidence  of  the  redemption. 

XXII.  LIMITATION  OF  ACTIONS  FOR  THE  RECOVERY  OF 
REAL  ESTATE.* 

The  limitation  upon  actions  for  the  recovery  of  real  estate, 
or  of  dower  therein,  is  twenty  years.  [2  R.  S.,  221,  Sec.  5.] 
An  occupant  of  land  under  some  written  instrument,  decree, 
or  judgment,  for  twenty  years,  is  deemed  to  have  an  adverse 
possession,  in  case  the  land  during  that  time  shall  have  been 
cleared,  fenced  and  improved.  [Id.,  222,  Sec.  9.]  "Whenever 
the  relation  of  landlord  and  tenant  exists,  the  possession  of 
the  tenant  is  deemed  the  possession  of  the  landlord,  until  the 
expiration  of  twenty  years  from  the  termination  of  the  ten- 
ancy ;  or  where  there  has  been  no  written  lease,  until  the 

*The  limitation  upon  contracts  not  under  seal,  express  or  implied,  notes,  bills, 
drafts,  accounts,  judgment  in  courts  not  of  record,  trespasses  on  land,  unlawful  de- 
tention of  goods,  libels,  and  criminal  conversations,  is  six  years ;  false  imprison- 
ments and  assaults,  four  years;  against  sheriffs,  for  neglect,  three  years;  slander 
of  character  or  title,  two  years ;  and  against  officers,  for  escapes,  one  year. 


NEW-YORK. 

expiration  of  twenty  years  from  the  time  of  the  last  payment 
of  rent.     [Id.,  223,  Sec.  13.] 

But  if  any  person,  entitled  to  an  action,  or  to  make  an  en- 
try, avowry,  or  cognizance,  be,  at  the  time  such  title  shall 
first  descend  or  accrue,  either  within  the  age  of  twenty -one 
years,  insane,  imprisoned  on  any  criminal  charge,  or  in  exe- 
cution upon  some  conviction  for  a  criminal  offence,  for  any 
term  less  than  for  life ;  or  a  married  woman,  ten  years  after 
the  removal  of  such  disability  is  allowed  for  such  action, 
entry,  avowry,  or  cognizance.  [Id.,  Sec.  1G.]  If  death 
ensue  during  the  existence  of  the  disability,  the  heirs  have 
a  limitation  for  the  same  purpose,  of  ten  years  after  such 
death,  fid.,  Sec.  17.] 

XXIII.       REAL    ESTATE    EXEMPTIONS    IN    NEW-YORK. 

No  real  estate,  nor  chattel  real,  of  a  debtor,  except  a  seat  or 
pew  occupied  by  him,  or  his  family,  in  a  church,  or  place  of 
public  worship,  are  exempt  from  levy  and  sale  on  execution. 
Several  ineffectual  attempts  have  been  made  in  the  Legisla- 
ture to  procure  the  passage  of  a  law  exempting  the  wife's 
separate  real  estate  from  the  debts  of  her  husband,  and  to  ex- 
empt a  certain  number  of  acres  to  the  debtor  and  his  family, 
for  a  residence,  but  hitherto  all  indications  are  unfavorable 
to  such  a  result.* 

•;i.>:i  kJ-J,  Title  .">,  Chap,  <i,  Part  '1  of  tin-  Kevi.-ed  Statutes,  provides  that  the 
following  property,  when  owned  by  any  person  being  a  householder,  shall  he  exempt- 
ed from  levy  and  sale  under  any  execution,  and  such  articles  thereof  ns  are  niovea- 
ble,  shall  continue  so  exempt,  while  the  family  of  such  person,  or  any  of  them,  may 
he  remo\in<r  from  one  place  of  residence  to  another: 

1.  All  spinning  wheels,  weaving  loom?,  and  stoves,  put  un  or  kept  for  use,  in  any 
dwelling  house : 

i2.  The  family  bible,  family  pictures,  and  school  books,  used  by  or  in  the  family  of 
such  person;  and  books  not  exceeding  in  value  fifty  dollars,  which  are  kept  and  used 
as  a  part  of  the  family  library  : 

:*.  A  seat  or  p.".v  occupied  by  such  person  or  his  family,  in  any  house,  or  place 
of  public  worship: 

4.  All  she--]),  to  the  number  of  ten,  with  their  fleeces,  and  the  yam  or  cloth  manu- 
factured from  the  same,  one  cow,  two  swine,  the  necessary  food  for  them,  all  ne- 


124  INTEREST  OF  MONEY  IN 


XXIV.       INTEREST    OF    MONEY    IN    NEW-YORK. 

INTEREST,  in  its  legal  sense,  is  an  established  equivalent 
for  the  use  of  another's  money.  The  practice  of  exacting  a 
per  centage  for  the  loan  or  forbearance  of  money  originated 
with  the  children  of  Israel.  Among  them  it  often  resulted 
in  constraining  debtors  to  surrender  their  persons  as  slaves 
to  the  service  of  their  creditors.  Whilst  it  may  be  inferred 
that  a  fair  compensation  for  the  use  of  money  was  acceptable 
to  the  Lawgiver,  it  is  palpable  that  taking  interest  from  the 
poor  was  regarded  as  oppression.  Hence,  1491  B.  C.,  an 
ordinance  was  given  unto  that  people,  commanding  them 
not  to  lay  usury  (interest)  upon  the  poor.  [Vide  Ex.,  Chap. 
22  :  25.]  The  same  thing  was  also  prohibited  by  the  Leviti- 
cal  law.  [Vide  Lev.,  Chap.  25  :  37.] 

Some  have  supposed  that  those  authorities  indicate  that 
the  taking  of  any  interest  from  any  person  is  obnoxious  to  the 
law  of  God.  Such,  however,  is  not  the  import  of  the  language 
used,  and  all  inferences  tending  to  such  a  conclusion  are  rebut- 
ted by  an  event  occurring  one  thousand  five  hundred  and 
twenty-four  years  afterward,  and  noted  at  verse  thirty-seven 
of  the  twenty-fifth  chapter  of  Matthew,  where  the  right  to 

cessary  pork,  beef,  fish,  flour  and  vegetables  actually  provided  tor  family  use,  and 
necessary  fuel  for  the  use  of  the  family  for  sixty  days  : 

5.  All  necessary  wearing  apparel,  beds,  bedsteads,  and  bedding  for  such  person 
and  Ins  family,  arms  and  accoutrements  required  by  law  to  be  kept  by  such  person, 
necessary  cooking  utensils,  one  table,  six  chairs,  six  knives  and  forks,  six  plates,  six 
tea-cups  and  saucers,  one  sugar-dish,  one  milk-pot,  one  tea-pot,  and  six  spoons,  one 
crane  and  its  appendages,  one  pair  of  andirons,  and  a  shovel  and  tongs : 

6.  The  tools  and  implements  of  any  mechanic,  necessary  to  the  carrying  on  of 
his  trade,  not  exceeding  twenty-five  dollars  in  value. 

By  an  act  passed  April  11,  1842,  it  was  provided,  that  in  addition  to  the  forego- 
ing articles,  necessary  household  furniture  and  working  tools,  and  team  owned  by 
any  person,  being  a  householder,  or  having  a  family  for  which  he  provides,  to  the 
value  of  not  exceeding  one  hundred  and  fifty  dollars,  shall  be  exempt  from  levy 
and  sale  under  execution,  except  for  the  purchase  money  thereof.  And  as  a  fur- 
ther protection  against  the  improvidence  occasioned  by  inebriety,  it  was  in  the 
same  act  further  provided,  that  any  assignment,  sale,  or  pledge,  of  property  ex- 
empt by  law  from  execution,  for  intoxicating  liquors,  shall  be  absolutely  void. 


NEW-YORK.  125 

usury  (interest)  was  clearly  indicated  by  a  competent  judge. 
[Vide  also  Luke  19  :  23.]  In  later  times,  however,  in  order 
to  prevent  oppression  of  the  poor,  it  has  been  found  necessa- 
ry to  regulate  the  rate  by  enactments.  The  New-York 
statute  upon  this  subject  is  as  follows  : 

"  The  rate  of  interest  upon  the  loan  or  forbearance  of  any 
money,  goods  or  things  in  action,  shall  continue  to  be  seven 
dollars  upon  one  hundred  dollars,  for  one  year,  and  after  that 
rate  for  a  greater  or  less  sum,  or  for  a  longer  or  shorter  time," 
[1  R.  S.,  760,  Sec.  1.] 

There  is  a  growing  desire  among  the  people,  to  have  the 
rate  reduced  to  six  per  cent ;  but  as  the  present  rate  invites 
hither  much  foreign  capital,  the  expedience  of  any  change 
may  be  considered  doubtful. 

XXV.  THE  PENALTY  AND  FORFEITURE  OF  USURY  IN 
NEW-YORK. 

USURY,  ill  its  primitive  sense,  was  interest.  The  import 
of  the  term  has  been  qualified  by  general  consent,  and  it  now 
signifies  excess  of  interest  beyond  that  which  is  allowed  by 
law.  To  regulate  trade,  and  prevent  extortion,  laws  have 
been  enacted,  regulating  interest  and  preventing  usury.  By 
a  statute  passed  May  15,  1837,  the  receiving  of  usury  was 
made  a  misdemeanor,  for  which  the  offender  may  be  indict- 
ed, tried  and  convicted,  and  fined,  not  exceeding  one  thou- 
sand dollars,  or  imprisoned,  not  exceeding  six  months,  or 
both,  at  the  discretion  of  the  court.  It  was  therein  also  made 
the  duty  of  all  courts  of  justice  to  charge  grand  juries  es- 
pecially to  inquire  into  any  violations  of  the  act,  to  prevent 
usury. 

In  addition  to  the  foregoing  penalty,  it  was  provided 
that  all  bonds,  bills,  notes,  assurances,  conveyances,  all  other 
contracts  or  securities  whatsoever,  (except  bottomry  and  re- 
spondentia  bonds  and  contracts,)  and  all  deposits  of  goods, 
or  other  things  whatsoever,  whereupon  or  whereby  there 


126  LANDS  JN 

shall  be  reserved  or  taken  any  greater  sum  or  greater  value, 
for  the  loan  or  forbearance  of  any  money,  goods,  or  other 
things  in  action,  than  at  and  after  the  rate  of  seven  per  cen- 
tum per  annum,  shall  be  void. 

Not  only  does  the  usurer  lose  the  excess,  but  ho  forfeits 
the  principal  together  with  the  lawful  interest  thereon, 
which,  otherwise,  he  might  acquire.  And  in  order  to  place 
the  proof  of  usury  within  the  reach  of  the  maker  of  a  usu- 
rious contract,  the  statute  provides  that  a  defendant  may 
call  the  plaintiff,  in  an  action  at  law,  as  a  witness  to  prove 
the  facts  concerning  the  excess  of  interest  by  him  taken  or 
reserved ;  and  if  such  plaintiff  swear  falsely  concerning 
the  same,  that  he  shall  be  subject  to  the  pains  and  penalties 
of  corrupt  perjury. 

Whilst  the  statute  above  cited  is  rigorous  concerning  usury, 
it  has  no  application  to  the  sale  or  transfer  of  bonds,  notes, 
or  securities  which  are  valid  in  their  inception.  If  the  ori- 
ginal transaction  between  the  parties  to  an  obligation  for  the 
payment  of  money  be  not  tainted  with  usury,  the  holder  of 
such  paper  may  transfer  the  same  at  whatever  discount  he 
may  choose  to  make,  and  the  purchase  thereof  by  a  third  per- 
son will  be  protected  by  law;  but  if,  in  making  such  transfer 
at  a  discount,  the  payee,  or  obligee  guaranty  the  payment  or 
collection  of  the  whole  amount  secured  by  the  face  of  the 
instrument,  he  cannot  be  held  thereon  for  the  excess  beyond 
the  consideration  by  him  received  of  the  purchaser,  and  simple 
interest  thereon,  from  the  time  of  the  transfer, 


OHIO.  127 


CHAPTER  II, 


THE  STATE  OF  OHIO. 

.N:\ti\c  IV 'Milt-tors  of  the  Territory  northwest  of  the  river  Oliio.     Exploration  and 

Settlement  thereof  by  the  French.     Grants  by  Governors  of  Posts.     The  Cou- 

tiimr-  Pi-  I 'aris.     Vandreuil's  Capitulation  to  General  Amherst,  and  Surrender 

of  the  Territory  to  Great  Britain.     Extracts  from  the  Charters  of  Massaclm- 

'.v-York  and  Virginia.     Succession  of  the  United  States  to 

the  rights  of  Great  Britain  over  the  Territory.  Cessions  of  Domain  from  Massa- 
clnnrtts,  Connecticut,  New-York  and  Virginia.  Treaties  extinguishing  the  In- 
dian Right  of  Occupancy.  Ordinance  of  Congress  concerning  the  Territory. 
The  Co:i>tiMi'io:i  of  Ohio.  Land  Title-,  .vrrnorally  in  the  State.  The  Execution, 
'•>f,  Acknowledgment  and  Recording  of  Conveyances.  The  Exe- 
cution and  i'robatc  of  Wills  of  R.-iil  Estate.  Descents.  Land  Taxes.  Tax 
Sales  nnd  Uod'-mptions,  Limitations  and  Exemptions.  Interest  of  Money,  and 
Usury. 

II.  NATIVE  PROPRIETORS  OF  THE  TERRITORY  NORTH- 
WEST OF  THE  RI*VER  OHIO. 

WHEN  this  magnificent  country  was  visited  by  Raymbault, 
it  was  in  the  peaceable  possession  of  the  Hurons  and  numerous 
cantons  of  the  Algonquin  race — the  former  an  offshoot  from 
the  parent  stock  of  the  Iroquois — the  latter  remnants  of  a 
powerful  confederacy,  which,  on  account  of  the  secession  of 
the  Foxes,  had  been  dissolved  about  a  century  before.  The 
seat  of  Algonquin  power,  and  the  theatre  of  their  operations, 
had,  in  the  better  days  of  their  confederacy,  been  beyond  the 
copper  mines;  but  after  the  Alleghans  and  Iroquois  had 
swept  along  and  passed  the  confines  of  the  valleys  of  the 
Mississippi  and  Ohio,  they  ranged  southward  to,  and  the 


128  NATIVE  PROPRIETORS  OF 

Delawares  had  even  crossed  the  Ohio,  and  established  them- 
selves on  the  head  waters  of  the  Atlantic  rivers.*  The  Iro- 
quois  claimed  the  Ohio  country,  but  did  not  occupy  it. 

The  Algonquins  were  a  very  warlike  people ;  but  in  their 
numerous  struggles  for  supremacy,  had  found  the  Iroquois 
to  be  their  superiors. 

Neither  history  nor  tradition  indicate  the  parentage  of  this 
race;  yet  ethnology  accredits  them  an  ancestry  on  the 
plains  of  Asiatic  Tartary.  [Vide  Ante  28.]  Although  rude 
and  uncultivated,  they  had  some  knowledge  of  husbandry, 
which  they  displayed  in  the  cultivation  of  orchards  and 
patches  of  corn.  They  evinced  a  disposition  for  society,  in  the 
compactness  of  their  villages  and  the  proximity  of  their 
towns.  And  although  unused  to  the  ways  of  civilization, 
and  destitute  of  all  bibliothecal  information,  they  were  pro- 
found in  the  philosophy  of  nature.  They  were  honest,  also. 
Guile  was  a  stranger  to  the  red  man,  until  the  strategy  of  a 
paler  face  taught  him  deceit.  Rude  as  he  was,  there  was  a 
nobility  in  his  character  which  neither  crowns  nor  coronets 
confer — the  nobility  of  honor. 

Having  for  a  long  period  been  in  the  undisputed  possession 
of  the  country,  the  Indians  had  come  to  regard  it  as  their  own  ; 
and  in  that  belief,  and  not  without  some  semblance  of  justice, 
have  they  pertinaciously  adhered  to  their  claim,  as  the  rude 
hand  of  civilization  has  pushed  them  from  their  hunting 
grounds,  and  driven  them  with  sabre  and  firelock,  from 
forest  to  forest,  and  from  river  to  river,  disputing  their  right 
to  the  land  of  their  birth,  and  the  soil  that  entombs  the  bones 
of  their  fathers. 

*  When  William  P«nn  came  to  America,  in  1682,  he  found  the  Delawares  in 
Pennsylvania.  They  claimed  to  have  been  on  the  Delaware  rivor  upwards  of  forty 
years;  but  were  then  xmder  the  orders  of  the  Iroquois  to  remo\r  to  Shomokin, 
or  Wyoming-.  [Golden7 s  Five  Nation?,  Vol.  1:  31,  U2.]  When  they  began  to 
recede,  they  opposed  the  white  settlements,  and  subsequently  burnt  Col.  Crawford 
at  the  stake.  It  was  the  Delawares  that  opposed  the  settlement  at  Marietta,  and 
drove  the  wliites  across  the  river.  [Metcalf*  Wars.] 


OHIO.  129 

II.  EXPLORATION  AND  SETTLEMENT  OF  THE  COUNTRY 
NORTHWEST  OF  THE  OHIO,  BY  THE  FRENCH. 

Upon  the  discovery  of  this  immense  continent,  the  nations 
of  Europe  were  eager  to  appropriate  to  themselves  so  much 
of  it  as  they  could  respectively  acquire.  France  colonized 
( 'anada  and  Acadie,  and  asserted  her  right  of  dominion  over 
the  wilderness  world  westward  and  southward  to  its  "utter- 
most bounds,"  including  the  territory  northwest  of  the  river 
Ohio.  To  consummate  her  title  by  possession,  she  sent  forth 
as  pioneers  in  the  enterprize,  deputations  both  from  her 
church  and  state  establishments ;  the  former  to  convert  the 
natives,  and  the  latter  to  treat  and  to  trade  with  them. 

As  the  country  had  never  been  explored  by  civilized  people, 
it  was  without  any  known  boundaries  or  limits.  The  colonial 
government  therefore,  in  the  name  of  the  King  of  France,  pre- 
luded the  enterprize  by  asserting  the  pre-emption  to  "all  the 
western  wilderness  then  occupied  by  heathen,"  which  included 
the  territory  northwest  of  the  river  Ohio. 

In  1041,  the  first  company  of  exploration  was  sent  out 
under  the  lead  and  guidance  of  a  Jesuit  missionary  by  the 
name  of  Raymbault,  who  pushed  his  way  to  the  Falls  of  St. 
Marys,  from  whence  he  returned  the  following  year  with  a 
report  that  the  natives  were  disposed  to  friendship. 

In  1654,  another  band  joined  the  Ottawas  and  with  them 
made  an  excursion  to  Green  Bay.  In  1660,  another  corps  of 
fur  traders  ventured  into  the  upper  lake  country,  and  re- 
turned in  company  with  three  hundred  Algonquins,  and  sixty 
canoes  laden  with  furs,  which  gave  great  eclat  to  the  excur- 
sion ;  whereupon  one  Mesnard  was  detailed  to  make  a  more 
thorough  exploration  of  the  country,  and  to  effect  a  congress 
of  the  tribes  in  that  quarter. 

Upon  the  accession  of  Tracy  as  Viceroy  of  the  Canadian 
colonies.  Father  Claude  was  despatched  with  instructions  to 
erect  a  chapel  in  the  green  valley  of  Che-goi-me-gon,  which 


130 


EXPLORATION  AND  SETTLEMENT  OF 


he  accomplished  in  1665  ;  after  which,  it  is  said,  the  doctrines 
of  the  cross,  the  terrors  of  hell,  and  the  judgments  of  heaven 
were  published  therein  by  the  pious  missionary.*  Attracted 
by  the  display  of  gorgeous  symbols,  the  Chippewas  nocked 
to  his  chapel ;  the  Pottawatamies  tendered  friendly  greetings ; 
the  Hnrons  invited  him  to  their  wigwams,  and  the  Illinois 
and  Miamis  sent  messages  to  this  wonderful  visitor.  After 
a  successful  mission  of  two  years  in  the  wilderness,  Father 
Claude  returned  to  Quebec  and  recommended  a  permanent 
colonization  of  the  country. 

In  1 668,  a  settlement  was  begun  at  St.  Marys,  under  the 
auspices  of  James  Marquette.  But  as  no  congress  of  the 
tribes  had  been  effected,  the  Intendant  General  of  Canada 
despatched  one  Nicholas  Perrot  to  the  Miami  settlement  at 
Chicago,  to  accomplish  that  end.  Perrot  was  successful  in 
the  enterprize,  and  the  congress  was  held  in  1671. t 

In  1673,  Marquette  undertook  the  exploration  of  the  Mis- 
sissippi, and  proceeded  far  enough  to  ascertain  that  it  emptied 
into  the  sea. 

The  next  adventurer  of  note,  who  had  the  temerity  to 
make  a  thorough  exploration,  was  Robert  De  La  Salle,  a 
native  of  Normandy.  Having  conceived  various  plans  for 
colonial  advancement,  he  applied  to  the  King  of  France,  who 
invested  him  \0ith  a  "seigneurie"  at  Frontenac,  to  which  he 
at  once  repaired  in  the  year  1678.  On  reaching  it,  he  set 
himself  about  the  work  of  exploration,  by  constructing  a  ship 
of  ten  tons  burthen,  upon  which  he  sailed  to  Niagara,  where 
he  built  another  called  the  "  Griffin,"  upon  which  he  sailed 
to  Green  Bay,  from  which  point,  after  loading  the  craft  with 
furs  and  sending  her  back,  he,  with  the  balance  of  his  men, 
proceeded  as  far  as  Peoria. 

La  Salle  projected  a  line  of  fortifications,  which  were  after- 
wards built  upon  the  water  line  of  the  northwest,  from  lake 
Ontario  to  the  Mississippi. 

*  Early  travelers  in  the  west.  t  Golden. 


OHIO.  131 

After  having  established  a  line  of  trading  posts  through 
the  country,  and  secured  the  favor  of  the  Indian  tribes, 
measures  were  adopted  for  planting  permanent  settlements 
therein.  The  French  Government  conceded  the  right  of  the 
natives  to  occupy  the  country  during  their  pleasure,  but 
claimed  the  title  to  be  in  the  King  of  France. 

The  first  colonial  establishment  was  erected  at  Detroit, 
under  a  grant  from  Louis  XIV.  to  Antoine  De  La  Motte  Ca- 
dillac, in  1701.  The  extent  of  this  grant  was  fifteen  acres 
square,  and  under  the  authority  contained  in  it,  the  same  was 
established  as  a  seigneury.  There  had  been  a  fort  at  this 
point  from  1664,  and  another  at  Mackinaw. 

In  1720,  settlements  were  made  at  Kaskaskia  and  Cahokia, 
and  in  1730  at  Vinccnnes.  After  this,  several  other  French 
settlements  were  planted  in  the  territory. 

III.     THE    COUTUME    DE    PARIS. 

During  the  period  of  French  jurisdiction  over  the  territory 
northwest  of  the  river  Ohio,  its  inhabitants  were  subjected  to 
the  law  of  Canada,  which  was  the  Coutume  De  Paris,  or 
Custom  of  Paris.  However  suitable  that  law  may  have  been 
for  its  theatre  and  occasion,  it  was  illy  adapted  to  these  forest 
settlements,  and  could  not  be  enforced'with  strictness  or  uni- 
formity. Its  feudal  character  and  concomitants  had  an 
influence,  however,  beyond  the  pale  of  its  provisional  require- 
ments, and  induced  a  serf-like  obedience  to  all  officers  in 
command  at  the  posts,  whose  authority  was  arbitrary  and 
severe. 

The  Commandants  were  invested  with  authority  to  convey 
or  grant  land  to  the  settlers  with  the  permission  of  the  Gov- 
ernor General  of  Canada,  but  subject  to  the  confirmation  of 
the  King  of  France,  who  claimed  the  original  and  ultimate 
title  in  case  of  escheat.  These  grants  contained  reservations 
and  appendages,  and  were  modeled  after  the  patents  in  use 
in  Canada.  The  patentees  or  purchasers  were  required  to 

, 


132  CAPITULATION  AND  SURRENDER  OF 

erect  their  dwellings  on  ground,  with  a  front  of  an  arpen  and 
a  half,  running  forty  arpens  back,  in  order  to  keep  the  set- 
tlements in  a  close  line  along  the  banks  of  the  lakes  and 
rivers,  the  better  to  protect  themselves  against  the  savages, 
and  the  more  conveniently  to  act  together  in  an  emergency. 
They  were  also  required  to  improve  their  land  within  three 
years  from  the  date  of  their  deeds,  and  were  prohibited  from 
working  thereon  at  the  trades  of  blacksmithing  or  gunsmith- 
ing,  under  the  penalty  of  forfeiture.  Each  grant  also  reserved 
the  right  of  shooting  rabbits,  hares,  and  partridges,  and  re- 
quired the  grantee  to  plant  or  assist  in  planting  a  May-pole 
at  the  door  of  the  principal  Manor  annually,  on  the  first  day 
of  May.  [Vide  Coutume  De  Paris,  in  3  Vols.] 

IV.  CAPITULATION  AND  SURRENDER  BY  THE  FRENCH 
TO  GREAT  BRITAIN. 

The  title  asserted  by  the  King  of  France  to  the  Northwest- 
ern Territory,  on  account  of  the  colonization  and  settlement 
thereof,  was  surrendered  in  1760,  to  Great  Britain,  and  con- 
firmed to  that  government  by  treaty  stipulations,  in  1763. 

Whilst  the  settlements  were  yet  few  and  feeble,  and  the 
settlers  themselves  were  buffeting  the  hard  fortunes  of  a 
wilderness  life,  the  Earl  of  Chatham  conceived  and  put  in 
operation  a  plan  for  circumventing  and  defeating  any  further 
extension  of  French  jurisdiction  over  this  region  of  country 
— a  plan  that  was  consummated  by  the  sending  hither  of  a 
large  military  force,  which,  co-operating  with  the  colonial 
troops,  met  and  defeated  the  French  on  the  heights  of  Abra- 
ham. After  this  event,  the  Canadian  possessions  were,  by 
the  Marquis  De  Vandreuil,  capitulated  and  surrendered  to 
General  Amherst.  The  articles  bear  date  November,  1760, 
but  were  not  confirmed  until  the  execution  of  a  treaty  by 
and  between  the  two  governments,  in  1763.  [Vide  Hist,  of 
New-France.  Vol.  1.] 


OHIO.  133 


V.  CHAPTERS  AND  OTHER  ACTS  UNDER  WHICH  THE  STATES 
OF  MASSACHUSETTS,  CONNECTICUT,  NEW-YORK  AND  VIR- 
GINIA, PREFERRED  CLAIMS  TO  THE  WASTE  AND  UNAP- 
PROPRIATED LANDS  IN  THE  WESTERN  COUNTRY. 

In  the  reign  of  James  the  First,  his  majesty  granted  a 
charter  to  the  VIRGINIA  colony,  under  date  of  May  23,  1609, 
the  sixth  section  of  which  was  in  the  following  words :  "And 
we  do  also,  of  our  special  grace,  &c.,  give,  &c.,  unto  the  said 
Treasurer  and  Company,  &c.,  all  those  lands,  countries  and 
territories,  situate,  lying  and  being  in  that  part  of  America 
called  Virginia,  from  the  point  of  land  called  Cape  or  Point 
Comfort,  all  along  the  sea  coast  to  the  northward  two  hun- 
dred miles,  and  from  the  said  Point  or  Cape  Comfort,  all  along 
the  sea  coast  to  the  southward  two  hundred  miles ;  and  all 
that  space  and  circuit  of  land  lying  from  the  sea  coast  of  the 
precinct  aforesaid,  up  into  the  land  throughout,  from  sea  to 
sea,  west  and  north-west ;  and  also  all  the  islands  within  one 
hundred  miles  along  the  coast  of  both  seas  of  the  precinct 
aforesaid."*  [7  James  I.,  Vol.  1,  465.] 

On  the  23d  day  of  April,  1662,  a  colonial  charter  was 
granted  to  CONNECTICUT,  containing  the  following  grant  and 
confirmation :  "  And  know  ye  further,  that  we,  of  our  abun- 
dant grace,  certain  knowledge,  and  mere  motion,  have  given, 
granted  and  confirmed,  and  by  these  presents  for  us,  our 
heirs  and  successors,  do  grant  and  confirm  unto  the  said 
Governor  and  Company,  and  their  successors,  all  that  part 
of  our  dominions  in  New-England,  in  America,  bounded  on 

*  The  charter  of  10th  April,  1(506,  extended  but  fifty  miles  inland  from  the  At- 
lantic ;  the  sc<-o;i<l  charter,  bi-inir  the  one  from  which  the  above  extract  was  taken, 
bounded  the  colony  by  the  Pacific  on  the  west ;  and  the  third,  dated  March  12, 
1612,  added  to  the  domain  all  islands  within  three  hundred  leagues  of  the  coast. 
On  the  15th  July,  1624,  a  commission  for  the  government  of  Virginia  was  issued, 
without  making  any  alteration  in  the  boundaries  thereof.  The  subsequent  grants 
to  Lord  Baltimore  and  William  Penn,  carried  away  some  of  the  territory  on  the 
north,  and  those  to  the  proprietors  of  Carolina,  on  the  south.  [Vide  Documents  in 
State  Department  at  Washington,  and  also  Jefferson's  Notes  on  Virginia.] 


134  CLAIMS  TO  THE  WASTE  LANDS  IN 

the  east  by  Narragansett  river,  commonly  called  Narragan- 
sett  bay,  where  the  said  river  falleth  into  the  sea ;  and  on 
the  north  by  the  line  of  the  Massachusetts  plantation ;  and 
on  the  south  by  the  sea  ;  and  in  longitude  as  the  line  of  the 
Massachusetts  colony,  running  from  east  to  west,  that  is  to 
say,  from  the  said  Narraganset1>bay  on  the  east,  to  the  south 
sea  on  the  west  part,  with  the  islands  thereunto  adjoining," 
(fee.,  &c.  [14  Car.,  2.] 

Although  this  grant  seems  to  have  been  quite  indefinite, 
in  respect  to  the  western  boundaries,  yet  Connecticut  assum- 
ed that  it  gave  her  some  interest  in  the  domain  north-west 
of  the  Ohio.  [See  Clarke's  U.  S.  Land  Laws,  80.] 

The  grant  of  Charles  Second  to  James,  Duke  of  York,  (after- 
ward King  James  the  Second,)  the  annexation  of  the  territo- 
ry of  the  Six  Nations,  the  provincial  charters,  and  the  sub- 
sequent independence  of  New- York,  were  claimed  to  invest 
that  State  with  a  title  to  some  portion  of  the  public  domain. 
[See  Grant  to  Duke  of  York,  Ante,  57.] 

The  claim  of  MASSACHUSETTS  was  derived  from  her  charter 
of  1691.  The  following  passages  occur  in  that  document : 

"William  and  Mary,  by  the  Grace  of  God,  King  and 
Queen  of  England,  Scotland,  France,  and  Ireland,  Defend- 
ers of  the  Faith,  &c.,  to  all  to  whom  these  presents  shall  come, 
greeting :  We  do  by  these  presents,  for  us,  our  heirs,  and  suc- 
cessors, will  and  ordain,  that  the  territories  and  colonies  com- 
monly called  or  known  by  the  names  of  the  colony  of  the 
Massachusetts  Bay  and  colony  of  New  Plymouth,  theprovince 
of  Main,  the  territory  called  Accada  or  Nova  Scotia,  and  all 
that  tract  of  land  lying  between  the  said  territories  of  Nova 
Scotia  and  the  said  province  of  Main,  be  erected,  united,  and 
incorporated  ;  and  we  do  by  these  presents  unite,  erect,  and 
incorporate  the  same  into  one  real  province,  by  the  name  of 
our  .province  of  the  Massachusetts  Bay,  in  New  England ; 
and  of  our  special  grace,  certain  knowledge,  and  mere  mo- 
tion, we  have  given  and  granted,  and  by  these  presents,  for 


OHIO.  135 

us,  our  heirs,  and  successors,  do  give  and  grant  unto  our 
good  subjects,  the  inhabitants  of  our  said  province  or  terri- 
tory of  the  Massachusetts  Bay,  and  their  successors,  all  that 
part  of  New  England,  in  America,  lying  and  extending 
from  the  Great  River,  commonly  called  Monomack,  alias, 
Merimack,  on  the  north  part,  and  from  three  miles  north- 
ward of  the  said  river,  to  the  Atlantic,  or  western  sea  or 
ocean,  on  the  south  part,  and  all  the  lands  and  hereditaments 
whatsoever  lying  within  the  limits  aforesaid,  and  extending 
as  far  as  the  outermost  points  or  promontories  of  land  called 
Cape  Cod  and  Cape  Malabar,  north  and  south,  and  in  lati- 
tude, breadth,  and  in  length,  and  longitude,  of  and  within 
all  the  breadth  and  compass  aforesaid  throughout  the  main 
land  there,  from  the  said  Atlantic  or  western  sea  and  ocean, 
on  the  east  part,  towards  the  south  sea,  or  westward,  as 
far  as  our  colonies  of  Rhode  Island,  Connecticut,  and  the 
Naragansett  country  ;  and  also  all  that  part  and  portion  of 
main  land  beginning  at  the  entrance  of  Piscataway  harbor, 
and  so  to  pass  up  the  same  into  the  river  of  Newichwannock, 
and  through  the  same  into  the  furthest  head  thereof,  and 
from  thence  northwestward,  till  one  hundred  and  twenty 
miles  be  finished,  and  from  Piscataway  harbor  mouth  afore- 
said, northeastward  along  the  sea  coast  to  Sagadehock  ;  and 
from  the  period  of  one  hundred  and  twenty  miles  aforesaid 
to  cross  overland  to  the  one  hundred  and  twenty  miles  be- 
fore reckoned,  up  into  the  land  from  Piscataway  harbor, 
through  Newichwannock  river  ;  and  also  the  north  half  of 
the  Isles  of  Shoals,  together  with  the  Isles  of  Capawock  and 
Nantucket,  near  Cape  Cod  aforesaid,  and  also  the  lands  and 
hereditaments  lying  and  being  in  the  country  or  territory 
commonly  called  Accada  or  Nova  Scotia,  and  all  those  lands 
and  hereditaments  lying  and  extending  between  the  said 
country  or  territory  of  Nova  Scotia,  and  the  said  river  of 
Sagadehock,  or  any  part  thereof. 

"That  it  shall  and  may  be  lawful  for  said  Governor  and 


136  THE  UNITED  STATES  ACQUIRE 

General  Assembly  to  make  or  pass  any  grant  of  lands  lying 
within  the  bounds  of  the  colonies  of  the  Massachusetts  Bay 
and  New  Plymouth,  and  province  of  Main,  in  such  manner 
as  heretofore  they  might  have  done  by  virtue  of  any  former 
charter  or  letters  patent ;  which  grants  of  lands,  within  the 
bounds  aforesaid,  we  do  hereby  will  and  ordain  to  be,  and 
continue  forever  of  full  force  and  effect,  without  our  further 
approbation  or  consent.  And  so  as  nevertheless,  and  it  is 
our  royal  will  and  pleasure  that  no  grant  or  grants  of  any 
lands  lying  or  extending  from  the  river  of  Sagadehock  to 
the  Gulf  of  St.  Lawrence  and  Canada  rivers,  and  to  the 
main  sea  northward  and  eastward,  to  be  made  or  passed  by 
the  Governor  and  General  Assembly  of  our  said  province,  be 
of  any  force,  validity,  or  effect,  until  we,  our  heirs,  or  suc- 
cessors, shall  have  signified  our  or  their  approbation  of  the 
same."*  [3  William  and  Mary,  Vol.  1,  462.] 

By  virtue  of  the  several  charters  and  grants  above  noted, 
the  States  of  Massachusetts,  Connecticut,  New- York,  arid 
Virginia,  asserted  claims  to  the  western  territory  at  the  period 
of  the  American  Revolution. 

VI.  SUCCESSION  OF  THE  PEOPLE  OF  THE  UNITED  STATES 
TO  THE  RIGHTS  OF  ENGLAND. 

The  British  Government,  upon  succeeding  to  the  rights  of 
the  King  of  France,  took  military  possession  of  the  territory 
north-west  of  the  river  Ohio,  and  by  means  of  commandants 
and  agents,  labored  with  assiduity  to  secure  the  favor  of  the 
native  proprietors.  But  little,  however,  was  done  for  tho 
white  settlers,  the  fur  trade  being  the  engrossing  object  of 
governmental  endeavors  in  this  quarter  until  the  people  of 
the  United  States  succeeded  to  all  the  rights  of  Great  Britain 
to  the  soil.  [Vide  Ante  59,  for  the  Definitive  Treaty.] 

*  The  first  Massachusetts  charter  was  granted  on  4th  of  March,  1628,  to  Sir 
Henry  Rosewell  and  others,  by  Charles  I*,  and  was  vacated  by  quo  warranto,  in 
1684.  [Clarke'a  U.  S<  Land  Laws,  79.] 


OHIO.  137 

VII.  CESSIONS  BY  VIRGINIA,  NEW-YORK,  MASSACHUSETTS 
AND  CONNECTICUT,  RECOMMENDED  BY  CONGRESS. 

By  an  act  of  Congress,  passed  on  the  sixth  day  of  September, 
1780,  the  States  having  or  preferring  any  claim  to  lands  in 
the  western  country,  were  recommended  to  cede  the  same, 
or  a  portion  thereof,  to  the  General  Government,  for  the 
benefit  of  the  Union.  [Journal  of  Congress  1780,  Vol.  2, 
582.] 

VIII.     THE  CESSION  OF  NEW-YORK. 

"  To  all  who  shall  see  these  presents,  we,  James  Duane, 
William  Floyd,  and  Alexander  McDougal  I,  the  underwritten 
delegates  for  the  State  of  New- York  in  the  honorable  Con- 
gress of  the  United  States  of  America,  send  greeting  : 

"Whereas,  by  an  act  of  the  Legislature  of  the  said  State  of 
New- York,  passed  at  a  session  held  at  Albany,  in  the  year  of 
our  Lord  one  thousand  seven  hundred  and  eighty,  entitled 
'An  act  to  facilitate  the  completion  of  the  articles  of  confed- 
eration and  perpetual  union  among  the  United  States  of 
America,'  it  is  declared  that  the  People  of  the  State  of  New- 
York  were,  on  all  occasions,  disposed  to  manifest  their  regard 
for  their  sister  States,  and  their  earnest  desire  to  promote  the 
general  interest  and  security,  and  more  especially  to  accele- 
rate the  federal  alliance,  by  removing,  as  far  as  it  depended 
upon  them,  the  impediment  to  its  final  accomplishment,  re- 
specting the  waste  and  uncultivated  lands  within  the  limits 
of  certain  States ;  and  it  is  thereby  enacted  by  the  People  of 
the  said  State  of  New- York,  represented  in  Senate  and  .As- 
sembly, and  by  the  authority  of  the  same,  that  it  might  and 
should  be  lawful  to  arid  for  the  delegates  of  the  said  State  in 
the  honorable  Congress,  and  they,  or  the  major  part  of  them, 
so  assembled,  are  thereby  fully  authorized  and  empowered, 
for,  and  on  behalf  of  that  State,  and  by  proper  and  authentic 
acts  or  instruments,  to  limit  and  restrict  the  boundaries  of  the 
*6 


138  CESSION  BY  NEW-YORK  OF  LANDS  IN 

said  State  in  such  manner  and  form  as  they  shall  judge  to  be 
expedient,  either  with  respect  to  the  jurisdiction,  as  well  as 
the  right  or  pre-emption  of  soil,  or  reserving  the  jurisdiction 
in  part  or  in  the  whole,  over  the  lands  which  may  be  ceded 
or  relinquished  with  respect  only  to  the  right  of  pre-emption 
of  the  soil ;  and  by  the  said  act  it  is  further  enacted  that  the 
territory  which  may  be  ceded  or  relinquished  by  virtue 
thereof,  either  with  respect  to  the  jurisdiction  as  well  as  the 
right  or  pre-emption  of  soil,  or  the  right  or  pre-emption  of  soil 
only,  shall  be  and  inure  for  the  use  and  benefit  of  such  of 
the  United  States  as  shall  become  members  of  the  federal 
alliance  of  the  said  States,  and  for  no  other  use  or  purpose 
whatsoever;  and,  by  the  said  act,  it  is  provided  and  enacted 
that  the  trust  reposed  by  virtue  thereof,  shall  not  be  executed 
by  the  delegates  of  the  said  State,  unless  at  least  three  of  the 
said  delegates  shall  be  present  in  Congress;  and  whereas,  by 
letters  patent  under  the  great  seal  of  the  said  State  of  New- 
York,  bearing  date  the  29th  day  of  October  last  past,  reciting 
that  the  Senate  and  Assembly  had,  on  the  12th  day  of  Sep- 
tember, then  last  past,  nominated  and  appointed  us,  the  said 
James  Duane,  William  Floyd,  and  Alexander  McDougall, 
together  with  John  Morin  Scott  and  Ezra  L'Hommedieu, 
delegates  to  represent  the  said  State  in  the  Congress  of  the 
United  States  of  North  America,  therefore,  in  pursuance  of 
the  said  nomination  and  appointment,  the  People  of  the  said 
State  of  New- York  did  thereby  commission  us,  the  said 
James  Duane,  William  Floyd. -and  Alexander  McDougall, 
and  the  said  John  Morin  Scott  and  Ezra  L'Hommedieu,  or 
any  majority  who  should  from  time  to  time,  attend  the  said 
Congress ;  and  if  only  one  of  the  said  delegates  should  at  any 
time  be  present  in  the  said  Congress,  he  should,  in  such  case, 
be  authorized  to  represent  the  said  State  in  the  said  Congress, 
as  by  an  authentic  copy  of  the  said  act,  and  an  exemplifica- 
tion of  the  said  commission,  remaining  among  the  archives 
of  Congress,  fully  appears; 


OHIO.  139 

••  Now,  therefore,  know  ye,  that  we,  the  said  James  Duane, 
William  Floyd,  and  Alexander  McDougall,  by  virtue  of  the 
power  and  authority,  and  in  the  execution  of  the  trust  reposed 
in  us,  as  aforesaid,  have  judged  it  expedient  to  limit  and  re- 
strict, and  we  do,  by  these  presents,  for  and  in  behalf  of  the 
said  State  of  New- York,  limit  and  restrict  the  boundaries  of 
the  said  State  in  the  western  parts  thereof,  with  respect  to 
the  jurisdiction,  as  well  as  the  right  or  pre-emption  of  soil, 
by  the  lines,  and  in  the  form  following,  that  is  to  say :  a  line 
from  the  northeast  corner  of  the  State  of  Pennsylvania,  along 
the  north  bounds  thereof  to  its  northwest  corner,  continued 
due  west  until  it  shall  be  intersected  by  a  meridian  line,  to 
be  drawn  from  the  forty-fifth  degree  of  north  latitude,  through 
the  most  westerly  bent  or  inclination  of  lake  Ontario  ;  thence 
by  the  said  meridian  line  to  the  forty-fifth  degree  of  north 
latitude,  and  thence  by  the  said  forty-fifth  degree  of  north 
latitude  ;  but  if,  on  experiment,  the  above  described  meridian 
line  shall  not  comprehend  twenty  miles  due  west  from  the 
most  westerly  bent  or  inclination  of  the  river  or  strait  of  Ni- 
agara, then  we  do,  by  these  presents,  in  the  name  of  the 
People,  and  for  and  on  behalf  of  the  State  of  New-York,  and 
by  virtue  of  the  authority  aforesaid,  limit  and  restrict  the 
boundaries  of  the  said  State  in  the  western  parts  thereof,  with 
respect  to  jurisdiction,  as  well  as  the  right  of  pre-emption  of 
soil,  by  the  lines,  and  in  the  manner  following,  that  is  to  say : 
a  line  from  the  northeast  corner  of  the  State  of  Pennsylvania, 
along  the  north  bounds  thereof,  to  its  northwest  corner,  con- 
tinued due  west  until  it  shall  be  intersected  by  a  meridian 
line,  to  be  drawn  from  the  forty-fifth  degree  of  north  latitude, 
through  a  point  twenty  miles  due  west  from  the  most  west- 
erly bent  or  inclination  of  the  river  or  strait  Niagara  ;  thence 
by  the  said  meridian  line  to  the  forty-fifth  degree  of  north 
latitude,  and  thence  by  the  said  forty-fifth  degree  of  north 
latitude :  and  we  do,  by  these  presents,  in  the  name  of  the 
People,  and  for  and  on  behalf  of  the  State  of  New- York,  and 


140  CESSION  BY  VIRGINIA  OF  LANDS  IN 

by  virtue  of  the  power  and  trust  committed  to  us  by  the  said 
act  and  commission,  cede,  transfer,  arid  forever  relinquish, 
to  and  for  the  only  use  and  benefit  of  such  of  the  States  as 
are,  or  shall  become  parties  to  the  articles  of  confederation, 
all  the  right,  title,  interest,  jurisdiction,  and  claim,  of  the  said 
State  of  New- York,  to  all  lands  and  territories  to  the  north- 
ward and  westward  of  the  boundaries  to  which  the  said  State 
is  in  manner  aforesaid  limited  and  restricted,  and  to  be 
granted,  disposed  of,  and  appropriated  in  such  manner  only 
as  the  Congress  of  the  said  United  or  Confederated  States 
shall  order  and  direct. 

"  In  testimony  whereof,  we  have  hereunto  subscribed  our 
names,  and  affixed  our  seals,  in  Congress,  the  first  day  of 
March,  in  the  year  of  our  Lord  one  thousand  seven  hundred 
and  eighty-one,  and  of  our  independence  the  fifth."  [Clarke's 
U.  S.  Land  Laws,  86.] 

IX.       THE    CESSION    OF    VIRGINIA. 

"  To  all  who  shall  see  these  presents,  we,  Thomas  Jeffer- 
son, Samuel  Hardy,  Arthur  Lee,  and  James  Monroe,  the  un- 
der-written delegates  for  the  commonwealth  of  Virginia,  in 
the  Congress  of  the  United  States  of  America,  send  -greeting  : 

"  Whereas  the  General  Assembly  of  the  Commonwealth  of 
Virginia,  at  their  sessions  begun  on  the  20th  day  of  October, 
1783,  passed  an  act,  entitled  'An  act  to  authorize  the  dele- 
gates of  this  State  in  Congress  to  convey  to  the  United  States, 
in  Congress  assembled,  all  the  right  of  this  commonwealth 
to  the  territory  northwestward  of  the  river  Ohio,'  in  these 
words  following,  to  wit :" 

[Here  follows  the  preamble  of  the  act.] 

"  Be  it  enacted  by  the  General  Assembly,  that  it  shall  and 
may  be  lawful  for  the  delegates  of  this  State  to  the  Congress 
of  the  United  States,  or  such  of  them  as  shall  be  assembled 
ii  Congress,  and  the  said  delegates,  or  such  of  them  so  as- 
sembled, are  hereby  fully  authorized  and  empowered  for  and 


OHIO.  141 

on  behalf  of  this  State,  by  proper  deeds  or  instruments  in 
writing,  under  their  hands  and  seals,  to  convey,  transfer,  as- 
sign, and  make  over  unto  the  United  States  in  Congress  as- 
sembled, for  the  benefit  of  the  said  States;  all  right,  title,  and 
claim,  as  well  of  soil  as  jurisdiction,  which  this  common- 
wealth hath  to  the  territory  or  tract  of  country  within  the 
limits  of  the  Virginia  charter,  situate,  lying,  and  being,  to 
the  northwest  of  the  river  Ohio,  subject  to  the  terms  and  con- 
ditions contained  in  the  before-recited  act  of  Congress  of  the 
13th  day  of  September  last :  that  is  to  say,  upon  condition 
that  the  territory  so  ceded  shall  be  laid  out  and  formed  into 
States,  containing  a  suitable  extent  of  territory,  not  less  than 
one  hundred,  nor  more  than  one  hundred  and  fifty  miles  square, 
or  as  near  thereto  as  circumstances  will  admit ;  and  that  the 
States  so  formed  shall  be  distinct  republican  States,  and  ad- 
mitted members  of  the  Federal  Union ;  having  the  same 
rights  of  sovereignty,  freedom,  and  independence,  as  the 
other  States. 

"  That  the  necessary  and  reasonable  expenses  incurred  by 
this  State  in  subduing  any  British  posts,  or  in  maintaining 
forts  and  garrisons  within  and  for  the  defence,  or  in  acquir- 
ing any  part  of  the  territory  so  ceded  or  relinquished,  shall 
be  fully  reimbursed  by  the  United  States :  and  that  one 
Commissioner  shall  be  appointed  by  Congress,  one  by  this 
Commonwealth,  and  another  by  those  two  Commissioners, 
who,  or  a  majority  of  them,  shall  be  authorized  and  empowered 
to  adjust  and  liquidate  the  account  of  the  necessary  and 
reasonable  expenses  incurred  by  this  State,  which  they  shall 
judge  to  be  comprised  within  the  intent  and  meaning  of  the 
act  of  Congress  of  the  tenth  of  October,  one  thousand  seven 
hundred  and  eighty,  respecting  such  expenses.  That  the 
French  and  Canadian  inhabitants,  and  other  settlers  of  the 
Kaskaskies,  St.  Vincents,  and  the  neighboring  villages,  who 
have  professed  themselves  citizens  of  Virginia,  shall  have 
their  possessions  and  titles  confirmed  to  them,  and  be  pro- 


142  CESSION  BY  VIRGINIA  OF  LANDS  IN 

tected  in  the  enjoyment  of  their  rights  and  liberties.  That 
a  quantity  not  exceeding  one  hundred  and  fifty  thousand 
acres  of  land,  promised  by  this  State,  shall  be  allowed  and 
granted  to  the  then  Colonel,  now  General,  George  Rogers 
Clarke,  and  to  the  officers  and  soldiers  of  his  regiment,  who 
marched  with  him  when  the  post  of  Kaskaskies  and  St.  Vin- 
cents were  reduced,  and  to  the  officers  and  soldiers  that 
have  been  since  incorporated  into  the  said  regiment,  to 
be  laid  off  in  one  tract,  the  length  of  which  not  to  exceed 
double  the  breadth,  in  such  place,  on  the  northwest  side  of 
the  Ohio,  as  a  majority  of  the  officers  shall  choose,  and  to  be 
afterwards  divided  among  the  said  officers  and  soldiers  in 
due  proportion,  according  to  the  laws  of  Virginia.  That  in 
case  the  quantity  of  good  land  on  the  southeast  side  of  the 
Ohio,  upon  the  waters  of  the  Cumberland  river,  and  between 
the  Green  river  and  Tennessee  river,  which  have  been  re- 
served by  law  for  the  Virginia  troops  upon  continental  estab- 
lishment, should,  from  the  North  Carolina  line,  bearing  in 
further  upon  the  Cumberland  lands  than  was  expected,  prove 
insufficient  for  their  legal  bounties,  the  deficiency  should  be 
made  up  to  the  said  troops,  in  good  lands,  to  be  laid  off  be- 
tween the  rivers  Sciota  and  Little  Miami,  on  the  northwest 
side  of  the  river  Ohio,  in  such  proportions  as  have  been  en- 
gaged to  them  by  the  laws  of  Virginia.  That  all  the  lands 
within  the  territory  so  ceded  to  the  United  States,  and  not 
reserved  for,  or  appropriated  to,  any  of  the  beforementioned 
purposes,  or  disposed  of  in  bounties  to  the  officers  and  sol- 
diers of  the  American  army,  shall  be  considered  a  common 
fund,  for  the  use  and  benefit  of  such  of  the  United  States  as 
have  become,  or  shall  become,  members  of  the  confederation 
or  federal  alliance  of  the  said  States,  Virginia  inclusive,  ac- 
cording to  their  usual  respective  proportions  in  the  general 
charge  and  expenditure,  and  shall  be  faithfully  and  bona 
fide  disposed  of  for  that  purpose,  and  for  no  other  use  or  pur- 
pose whatsoever:  Provided,  that  the  trust  hereby  reposed  in 


OHIO.  143 

the  delegates  of  this  State,  shall  not  be  executed,  unless 
three  of  them,  at  least,  are  present  in  Congress. 

"And  whereas  the  said  General  Assembly,  by  their  resolu- 
tion of  June  sixth,  one  thousand  seven  hundred  and  eighty- 
three,  had  constituted  and  appointed  us.  the  said  Thomas 
Jefferson,  Samuel  Hardy,  Arthur  Lee,  and  James  Monroe, 
delegates  to  represent  the  said  Commonwealth  in  Congress 
for  one  year,  from  the  first  Monday  in  November  then  next 
following,  which  resolution  remains  in  full  force,  now,  there- 
fore, know  ye,  that  we,  the  said  Thomas  Jefferson,  Samuel 
Hardy,  Arthur  Lee,  and  James  Monroe,  by  virtue  of  the 
power  and  authority  committed  to  us  by  the  act  of  the  said 
General  Assembly  of  Virginia  before  recited,  and  in  the 
name  and  for  and  on  behalf  of  the  said  Commonwealth,  do 
by  these  presents  convey,  transfer,  assign  and  make  over, 
unto  the  United  States,  in  Congress  assembled,  for  the  bene- 
fit of  the  said  States.  Virginia  inclusive,  all  right,  title,  and 
claim,  as  well  of  soil  as  jurisdiction,  which  the  said  Com- 
monwealth hath  to  the  territory  or  tract  of  country  within 
the  limits  of  the  Virginia  charter,  situate,  lying,  and  being  to 
the  northwest  of  the  river  Ohio,  to  and  for  the  uses  and  pur- 
poses, and  on  the  conditions  of  the  said  recited  act.  In  tes- 
timony whereof,  we  have  hereunto  subscribed  our  names 
and  aflixecl  our  seals,  in  Congress,  the  —  day  of  — ,  in  the 
year  of  our  Lord  one  thousand  seven  hundred  and  eighty- 
four,  and  of  the  independence  of  the  United  States,  the 
eighth."  [Clarke's  U.  S.  Land  Laws,  98.] 

The  foregoing  deed  of  cession  was  afterwards  amended  on 
the  recommendation  of  Congress,  so  far  as  to  empower  Con- 
gress to  divide  the  territory  into  not  more  than  five,  nor  less 
than  three,  States,  as  the  future  condition  and  circumstances 
of  the  country  might  require.  [See  Act  of  Virginia,  Dec. 
30,  1788 ;  R.  S.  of  Indiana,  18.] 


144  CESSION  BY  MASSACHUSETTS  OF  LANDS  IN 


X.       THE    CESSION    OF    MASSACHUSETTS. 

"  To  all  who  shall  see  these  presents,  we,  Samuel  Holten 
and  Rufus  King,  the  underwritten  delegates  for  the  Com- 
monwealth of  Massachusetts,  in  the  Congress  of  the  United 
States  of  America,  send  greeting  :" 

[Here  follows  the  recital  of  the  acts  of  the  State  of  Mas- 
sachusetts, authorizing  its  delegates  in  Congress  to  make 
the  cession.] 

"Now,  therefore,  know  ye,  that  we,  the  said  Samuel 
Holten  and  Rufus  King,  by  virtue  of  the  power  and  author- 
ity to  us  committed  by  the  said  acts  of  the  General  Court  of 
Massachusetts,  before  recited,  in  the  name,  and  for  and  on 
behalf,  of  the  said  Commonwealth  of  Massachusetts,  do,  by 
these  presents,  assign,  transfer,  quit-claim,  cede,  and  convey, 
to  the  United  States  of  America,  for  their  benefit,  Massachu- 
setts inclusive,  all  right,  title,  and  estate,  of  and  in,  as  well 
the  soil  as  the  jurisdiction,  which  the  said  Commonwealth 
hath  to  the  Territory  or  tract  of  country  within  the  limits  of 
the  Massachusetts  charter,  situate  and  lying  west  of  the  fol- 
lowing line,  that  is  to  say :  A  meridian  line  to  be  drawn 
from  the  forty-fifth  degree  of  north  latitude,  through  the 
westerly  bent  or  inclination  of  lake  Ontario,  thence,  by  the 
said  meridian  line,  to  the  most  southerly  side  line  of  the  ter- 
ritory contained  in  the  Massachusetts  charter ;  but  if,  on  ex- 
periment, the  above  described  meridian  line  shall  not  com- 
prehend twenty  miles  due  west  from  the  most  westwardly 
bent  or  inclination  of  the  river  or  strait  of  Niagara,  then  we  do, 
by  these  presents,  by  virtue  of  the  power  and  authority 
aforesaid,  in  the  name  and  on  behalf  of  the  said  Common- 
wealth of  Massachusetts,  transfer,  quit-claim,  cede,  and  con- 
vey to  the  United  States  of  America,  for  their  benefit,  Mas- 
sachusetts inclusive,  all  right,  title,  and  estate,  of  and  in,  as 
well  the  soil  as  the  jurisdiction,  which  the  said  Common- 
wealth hath  to  the  territory  or  tract  of  country  within  the 


onto.  145 

limits  of  the  Massachusetts  charter,  situate  and  lying  west 
of  the  following  line,  that  is  to  say :  A  meridian  line  to  be 
drawn  from  the  forty- fifth  degree  of  north  latitude,  through 
a  point  twenty  miles  due  west  from  the  most  westerly  bent 
or  inclination  of  the  river  or  strait  Niagara;  thence,  by  the 
said  meridian  line,  to  the  most  southerly  side  line  of  the  ter- 
ritory contained  in  the  Massachusetts  charter  aforesaid,  for 
the  purposes  in  the  said  recited  acts  declared,  and  to  the  uses 
in  a  resolve  of  Congress  of  the  tenth  day  of  October,  one 
thousand  seven  hundred  and  eighty,  mentioned. 

"  In  testimony  whereof,  we  have  hereunto  subscribed  our 
names  and  affixed  our  seals,  in  Congress,  this  nineteenth  day 
of  April,  in  the  year  of  our  Lord  one  thousand  seven  hundred 
and  eighty-five,  and  of  the  independence  of  the  United 
States  of  America,  the  ninth."  [Clarke's  U.  S.  Land  Laws, 
10&] 

XI.       THE    CESSION    OF    CONNECTICUT. 

i;  To  all  who  shall  see  these  presents,  we,  "William  Samuel 
Johnson,  and  Jonathan  St urges,  the  underwritten  delegates 
lor  the  State  of  Connecticut,  in  the  Congress  of  the  United 
States,  send  greeting  :  Whereas  the  General  Assembly  of  the 
State  of  Connecticut,  on  the  second  Thursday  of  May,  in. 
the  year  of  our  Lord  one  thousand  seven  hundred  and 
eighty-six,  passed  an  act  in  the  following  words,  viz:  'Be 
it  enacted  by  the  Governor,  Council,  and  Representatives,  in 
General  Court  assembled,  and  by  the  authority  of  the  same, 
that  the  delegates  of  this  State,  or  any  two  of  them,  who 
shall  be  attending  the  Congress  of  the  United  States,  be,  and 
they  are  hereby,  directed,  authorized,  and  fully  empowered, 
in  the  name  and  behalf  of  this  State,  to  make,  execute,  and 
deliver,  under  their  hands  and  seals,  an  ample  deed  of  re- 
lease and  cession  of  all  the  right,  title,  interest,  jurisdiction 
and  claim,  of  the  State  of  Connecticut,  to  certain  western 
lands,  beginning  at  the  completion  of  the  forty-first  degree- 
7 


146  INDIAN  CESSIONS  NORTHWEST  OF  THE 

of  north  latitude,  one  hundred  and  twenty  miles  west  of  the 
western  boundary  line  of  the  Commonwealth  of  Pennsylva- 
nia, as  now  claimed  by  said  Commonwealth,  and  from 
thence  by  a  line  drawn  north,  parallel  to,  and  one  hundred 
and  twenty  miles  west  of  the  said  west  line  of  Pennsylva- 
nia, and  to  continue  north  until  it  comes  to  forty-two  degrees 
and  two  minutes  north  latitude;  whereby  all  the  right,  ti- 
tle, interest,  jurisdiction,  and  claim,  of  the  State  of  Connec- 
ticut, to  the  lands  lying  west  of  said  line  to  be  drawn  as 
aforementioned,  one  hundred  and  twenty  miles  west  of  the 
•western  boundary  line  of  the  Commonwealth  of  Pennsylva- 
nia, as  now  claimed  by  said  Commonwealth,  shall  be  in- 
cluded, released,  and  ceded  to  the  United  States,  in  Congress 
assembled,  for  the  common  use  and  benefit  of  the  said  States, 
Connecticut  inclusive.'  Now  therefore,  know  ye.  that  we, 
the  said  William  Samuel  Johnson  and  Jonathan  Sturges,  by 
virtue  of  the  power  and  authority  to  us  ccmmitted  by  the 
said  act  of  the  General  Assembly  of  Connecticut,  before  re- 
cited, in  the  name,  and  for  a,nd  on  behalf  of  the  said  State 
of  Connecticut,  do,  by  these  presents,  assign,  transfer,  quit- 
claim, cede  and  convey  to  the  United  States  of  America,  for 
their  benefit,  Connecticut  inclusive,  all  the  right,  title,  inter- 
est, jurisdiction  and  claim,  which  the  said  State  of  Connec- 
ticut hath  in  and  to  the  beforernentioned  and  described  ter- 
ritory or  tract  of  country,  as  the  same  is  bounded  and  de- 
scribed in  the  said  act  of  Assembly,  for  the  uses  in  the  said 
recited  act  of  Assembly  declared. 

"In  witness  whereof  we  have  hereunto  set  our  hands  and 
seals,  this  thirteenth  day  of  September,  in  the  year  of  our 
Lord  one  thousand  seven  hundred  and  eighty-six,  and  of 
the  sovereignty  and  independence  of  the  United  States  of 
America,  the  eleventh."  [Clarke's  U.  S.  Land  Laws,  103.] 


OHIO.  147 

XII.     IXDIAN  TREATIES,  CESSIONS  AND  GRANTS. 

It  has  been  remarked,  that  the  right  of  Europeans  to  which 
the  people  of  the  United  States  were  subrogated,  was  the  right 
of  acquiring  the  soil  of  the  native  proprietors  by  extinguish- 
ing the  Indian  right  of  occupancy.  Immediately  after 
the  conclusion  of  the  definitive  treaty  of  peace  with  Great 
Britain,  the  Indian  territory  northwest  of  the  Ohio  received 
the  especial  attention  of  Congress,  and  George  Rogers  Clarke, 
Richard  Butler  and  Arthur  Lee,  were  appointed  Ministers 
Plenipotentiary  to  proclaim  peace  to  and  treat  with  the  tribes 
in  that  region. 

At  Fort  JVIcIntosh.  January  21, 1785,  those  gentlemen  met 
the  sachems  and  warriors  of  the  WYANDOTS,  DELAWARES, 
CmppEWAS,  and  OTTAWAS  in  council,  where  peace  and  the 
protection  of  the  government  were  guarantied  to  the  latter 
upon  conditions  of  reciprocity,  and  the  following  boundary 
line  between  the  United  States  and  the  AYyandot  and  Dela- 
ware nations  established,  viz  :  Beginning  at  the  mouth  of  the 
Cuyahoga,  and  running  thence  up  the  said  river  to  the  port- 
age between  that  and  the  Tuscarawas  branch  of  the  Mus- 
kingum;  thence  down  said  branch  to  the  forks  above  Fort 
Lawrence  ;  thence  westerly  to  the  portage  of  the  Big  Miami ; 
thence  along  snid  portu-rc  to  the  Great  Miami;  thence  down 
the  southeast  side  of  the  same  to  its  mouth  ;  thence  along  the 
south  shore  of  Lake  Erie  to  the  place  of  beginning.  The 
posts  of  Detroit  and  Mackinnc,  and  a  belt  of  six  miles  on  the 
eastern  margin  of  the  poninsulaof  Michigan  were  relinquished 
to  the  United  States.  [Congressional  Journals  of  1785,  1  : 
390.] 

At  Fort  Harmar.  January  9. 1789.  Arthur  St.  Clair,  Gover- 
nor of  the  Northwestern  Territory  and  Minister  Plenipoten- 
tiary for  settling  boundaries  with  Indian  nations,  concluded 
a  treaty  with  the  HURONS,  DELAWARES,  OTTAWAS,  POTTA- 
WATTAMIES,  and  SACS,  in  and  by  which  the  boundaries 


148  INDIAN  CESSIONS  NORTHWEST  OF  THE 

contained  in  the  treaty  of  Fort  Mclntosh  were  confirmed, 
and  "all  lands  east,  south  and  west"  thereof,  claimed  by 
said  tribes,  were  relinquished  to  the  United  States.  [Jour- 
nal of  Congress,  1789,  1:  393.] 

At  Greenville,  August  3,  1795,  General  Anthony  Wayne, 
then  commanding  the  western  division  of  the  army  of  the 
United  States,  to  put  an  end  to  the  Indian  wars  on  the  fron- 
tier, and  to  restore  harmony  between  the  United  States  and 
the  HURONS,  DELAWARES,  SHAWANESE,  OTTAWAS,  CHIP- 
PEW  AS,  POTTAWATTAMIES,  MlAMIS,  EEL  RlVERS,  WEAS, 

KICKAPOOS,  PIANKESHAWS,  and  KASKASKIAS,  concluded 
a  treaty  of  peace  with  said  nations,  in  and  by  which  the  old 
boundary  line  was  confirmed,  and  the  following  tracts  of 
land,  being  sixteen  in  number,  ceded  to  the  United  States, 
viz :  One  piece  of  land  six  miles  square,  at  or  near  Loro- 
mie's  store ;  one  piece  two  miles  square,  at  the  head  of  the 
navigable  waters  or  landing  on  the  St.  Mary's  river,  near 
Girty's  town  ;  one  piece  six  miles  square,  at  the  head  of  the 
navigable  waters  of  the  Auglaize  river;  one  piece  six  miles 
square,  at  the  confluence  of  the  Auglai/c  and  Miami  rivers  ; 
one  piece  six  miles  square,  at  or  near  the  confluence  of  the 
rivers  St.  Mary's  and  St.  Joseph's ;  one  piece  two  miles  square, 
on  the  Wabash  river,  at  the  end  of  the  portage  from  the 
Miami  of  the  lake,  and  about  eight  miles  westward  from 
Fort  Wayne ;  one  piece  six  miles  square,  at  the  Old  Wea 
towns,  on  the  Wabash  river ;  one  piece  twelve  miles  square, 
at  the  British  fort  on  the  Miami  of  the  lake,  at  the  foot  of 
the  rapids ;  one  piece  six  miles  square,  at  the  mouth  of 
the  said  river,  where  it  empties  into  the  lake ;  one  piece 
six  miles  square,  upon  Sandusky  lake,  where  a  fort  for- 
merly stood  ;  one  piece  two  miles  square,  at  the  lower 
rapids  of  Sandusky  river ;  the  post  of  Detroit,  and  all  the 
land  to  the  north,  the  west,  and  the  south  of  it,  of  which  the 
Indian  title  had  been  extinguished  by  gifts  or  grants  to  the 
French  or  English  Governments :  and  so  much  more  land 


OHIO.  149 

to  be  annexed  to  the  district  of  Detroit,  as  should  be  compre- 
hended between  the  river  Rosine,  on  the  south,  lake  St.  Glair 
on  the  north,  and  a  line,  the  general  course  whereof  should  be 
six  miles  distant  from  the  west  end  of  lake  Erie  and  Detroit 
river ;  the  post  of  Michilimackinac,  and  all  the  land  on  the 
island  on  which  that  post  stood,  and  the  main  land  adjacent, 
of  which  the  Indian  title  had  been  extinguished  by  gifts  or 
grants  to  the  French  or  English  Governments ;  and  a  piece 
of  land  on  the  main  to  the  north  of  the  island,  to  measure  six 
miles  on  lake  Huron,  or  the  strait  between  lakes  Huron  and 
Michigan,  and  to  extend  three  miles  back  from  the  water  on 
the  lake  or  strait :  and  also,  the  island  De  Bois  Blanc,  being 
an  extra  and  voluntary  gift  of  the  Chippewa  nation;  one 
piece  of  land  six  miles  square,  at  the  mouth  of  Chicago  river, 
emptying  into  the  southwest  end  of  lake  Michigan,  where  a 
fort  formerly  stood;  one  piece  twelve  miles  square,  at  or  near 
the  month  of  the  Illinois  river,  emptying  into  the  Mississippi; 
one  piece  six  miles  square,  at  the  Old  Piorias  fort  and  village, 
near  the  south  end  of  the  Illinois  lake.  In  return,  the  Uni- 
ted States  relinquished  their  claims  "to  all  other  Indian 
lands  northward  of  the  river  Ohio,  eastward  of  the  Missis- 
sippi, and  westward  and  southward  of  the  great  lakes  and 
the  waters  uniting  them,  except  one  hundred  and  fifty  thou- 
sand acres  near  the  Ohio  rapids,  the  posts  of  St.  Vincennes 
and  Fort  Massac,  and  the  lands  occupied  by  the  French  set- 
tlers. [U.  S.  Laws,  1 :  398.] 

At  Fort  Wayne,  June  7,  1803,  William  Henry  Harrison, 
Governor  of  Indiana  Territory  and  Superintendent  of  Indian 
Vii'airs.  concluded  a  treaty  with  the  same  tribes  in  and  by 
which  sundry  matters  of  difference  between  them  and  the  Uni- 
ted States  were  adjusted,  and  the  land  included  in  the  term 
"post  of  Vincennes,"  defined  as  follows  :  "Beginning  at  Point 
Coupee,  on  the  Wabash,  and  running  thence  by  a  line  north 
seventy  eight  degrees  west  twelve  miles ;  thence  by  a  line 
parallel  to  the  general  course  of  the  Wabash,  until  it  shall  be 


150  INDIAN  CESSIONS  NORTHWEST  OF  THE 

intersected  by  a  line  at  right  angles  to  the  same,  passing 
through  the  mouth  of  White  river ;  thence  by  the  last  men- 
tioned line,  across  the  Wabash  and  towards  the  Ohio,  seventy- 
two  miles ;  thence  by  a  line  north  twelve  degrees  west,  until 
it  shall  be  intersected  by  a  line  at  right  angles  to  the  same, 
passing  through  Point  Coupee  and  the  last  mentioned  line  to 
the  place  of  beginning."  [Clarke's  U.  S.  Laws,  159.] 

At  Vincennes,  August  7,  1803,  a  council  was  held,  in 
which  the  United  States  were  represented  by  William  Henry 
Harrison,  and  all  the  tribes  named  in  the  treaty  of  Fort 
Wayne,  except  the  Weas,  by  their  own  sachems  and  war- 
riors, and  a  treaty  concluded  confirming  the  treaty  of  Fort 
Wayne.  [Id.,  161.] 

At  Vincennes,  August  13,  1803,  the  same  Commission- 
er concluded  a  treaty  with  the  KASKASKIAS,  in  and  by 
which  the  latter  relinquished  all  the  Illinois  country,  except 
a  tract  of  three  hundred  and  fifty  acres  near  Kaskaskia.  [Id., 
172.] 

At  Vincennes,  August  18,  1804,  the  same  Commissioner 
concluded  a  treaty  with  the  DELAWARES,  in  which  the 
latter  ceded  to  the  United  States  all  their  right  and  title  to 
the  country  between  the  Ohio  and  Wabash  rivers,  and  below 
the  tract  ceded  by  the  treaty  of  Fort  Wayne.  [Id.,  173.] 

At  Vincennes,  August  27,  1804,  the  PIANKESHAWS  ceded 
to  the  United  States  all  their  right  to  land  below  Clark's 
Grant,  between  the  Ohio  and  the  Wabash.*  [Id.,  175.] 

At  Fort  Industry,  July  4, 1805,  the  sachems  of  the  Hunoxs, 
OTTAWAS,  CHIPPEWAS,  MUNSEES,  DELAWARES.  SHAWA- 
NEES,  and  POTT  AW  ATT  AMIES,  ceded  all  land  within  one 
hundred  and  twenty  miles  of  the  western  line  of  Pennsylva- 
nia. [Id.,  162.] 

At  Grouseland,  near  Vincennes,  August  21,  1805,  Gen. 

*  Clark's  Grant,  was  one  hundred  and  fifty  thousand  acres  of  land  granted  to  the 
officers  and  soldiers  of  Colonel  Clarke's  regiment,  who,  under  his  commund,  reduced 
the  posts  of  Kaskaskia  and  Vincennes,  dming  the  Revolutionary  War.  [Harrison's 
Discourse.] 


OHIO.  151 

Harrison  concluded  a  treaty  with  the  DEL  A  WARES,  POT- 
TAWATTAMIES,  Mi  AM  is,  EEL  RIVERS,  and  WEAS,  in  and 
by  which  the  latter  relinquished  their  claim  to  land  south 
of  a  line  to  be  drawn  from  the  northeast  corner  of  the  tract 
to  be  ceded  by  the  treaty  of  Fort  Wayne,  so  as  to  strike 
the  general  boundary  line,  running  from  a  point  opposite 
to  the  month  of  the  Kentucky  river  to  Fort  Recovery,  at  the 
distance  of  fifty  miles  from  its  commencement  on  the  Ohio 
river.  [Id.,  163.] 

At  Detroit,  November  17, 1807,  William  Hull,  Governor  of 
Michigan,  concluded  a  treaty  with  the  OTTAWAS,  CHIPPE- 
WAS,  AV  VAX  DOTS,  and  POTT  A  WATT  AMIES,  in  and  by  which 
the  latter  ceded  to  the  United  States  all  lands  comprehended 
within  the  following  boundaries,  viz?  Beginning  at  the  mouth 
of  the  Miami  of  the  Lakes,  and  running  thence  up  the  middle 
thereof  to  the  mouth  of  the  Auglaizc  ;  thence  north  to  a  par- 
allel of  latitude  to  be  drawn  from  the  outlet  of  lake  Huron  ; 
thence  northeast  to  White  Rock ;  thence  cast  to  the  line  of 
Upper  r,<  Kid, i ;  thcaoo  southwardly  through  the  river  and 
lake  St.  Clair,  and  Detroit  river,  into  lake  Erie,  to  a  point 
due  east  of  the  aforesaid  Miami  river ;  thence  west  to  the 
place  of  beginning.  [Id.,  164. j 

At  Brownstown,  November  25,  1808,  Governor  Hull  con- 
cluded a  treaty  with  the  above  tribes  and  the  SHAWANEES, 
in  and  by  which  the  latter  ceded  a  right  of  way  for  a  road 
from  the  Miami  Rapids  to  the  Connecticut  Reserve,  and  an- 
other to  run  southward  from  Fort  Sandusky.  [Id.,  167.] 

At  Fort  Wayne,  September  30,  1809,  Gen.  Harrison  con- 
cluded a  treaty  with  the  DELAWARES,  POTTAWATTAMIES, 
Mi  AM  is,  and  EEL  RIVERS,  in  which  they  ceded  to  the 
United  States  a  tract  of  land  about  the  Wabash,  and  between 
the  latter  and  Racoon  Creek.  [Id.,  168.] 

At  Vincennes,  December  9,  1809,  the  same  Commissioner 
concluded  a  treaty  with  the  KICKAPOOS,  who  therein  ceded 
to  the  United  States  a  tract  of  land  batween  the  Wabash  and 


152  INDIAN"  CESSIONS  NORTHWEST  OF  THE 

Vermillion  rivers,  and  the  land  ceded  in  the  foregoing  treaty. 
[Id,  70.] 

At  St.  Louis,  August  24,  1816,  Ninian  Edwards.  Wil- 
liam Clark,  and  Auguste  Chotcan,  Commissioners,  concluded 
a  treaty  with  the  OTTAWAS,  CHIPPEWAS,  and  POTTA- 
WATTAMIES,  in  and  by  which  the  latter  relinquished  to 
the  United  States  a  tract  of  land  in  Illinois,  beginning  ton 
miles  above  the  mouth  of  Fox  river  ;  running  thence  so  as 
to  cross  Sandy  creek,  ten  miles  above  its  mouth  ;  thence  in 
a  direct  line  to  a  point  ten  miles  north  of  the  portage,  be- 
tw,een  Chicago  creek  and  the  river  Depleines ;  thence  to  a 
point  ten  miles  north  of  the  mouth  of  Chicago  creek  ;  thence 
to  a  point  ten  miles  southward  of  the  mouth  of  said  creek  ; 
thence  to  the  Kankakee,  ten  miles  above  its  mouth  ;  thence 
to  the  mouth  of  the  Fox  river,  and  thence  to  the  place  of 
beginning.  [Id.,  177.] 

At  Spring  Wells,  near  Detroit,  September  8, 1815,  William 
H.  Harrison,  Duncan  Me  Arthur,  and  John  Graham,  Com- 
missioners, concluded  a  treaty  of  peace  with  the  HUROXS, 
DELAWARES,  SENEGAS,  SHAWANEES,  MIAMIS,  CHIPPE- 
WAS, OTTAWAS,  and  POTTAWATTAMIES,  in  which  the  hos- 
tilities of  the  latter  were  pardoned,  and  the  boundaries  and 
cessions  of  former  treaties  re-confirmed.  [Id.,  186.] 

At  the  foot  of  Miami  Rapids,  September  29, 1817,  another 
treaty  was  effected  between  the  same  parties,  in  which  the 
sachem,  chiefs  and  warriors  of  the  said  tribes  ceded  to  the 
United  States  a  large  tract  between  the  Sandusky  and  Au- 
glaize.  [Id.,  187.] 

At  St.  Mary's,  Ohio,  October  2,  1818,  the  POTTAWATTA- 
MIES ceded  all  land  south  of  the  Wabash.  and  a  tract  about 
the  Tippecanoe.  [Id.,  201.] 

At  St.  Mary's,  Ohio,  October  6,  1818,  a  treaty  was  con- 
cluded with  the  MIAMIS,  in  which  the  latter  ceded  an  im- 
mense tract  between  the  Wabash  and  Miami  rivers.  [Id ..  203.] 

At  St.  Mary's,  Ohio,   September  30,  1818,  the  HURON s 


OHIO.  153 

ceded  to  the  United  States  five  thousand  acres  in  Michigan. 
[Id,  206.] 

At  St.  Mary's,  Ohio,  October  2, 1818,  the  WE  AS  ceded  all 
their  lands  in  Ohio,  Indiana,  and  Illinois.  [U.  S.  Laws,  Vol. 
6:  733.] 

At  Ed  \vardsville,  September  25.  1818.  a  treaty  was  con- 
cluded with  the  PEORIAS,  KASKASKIAS,  MITCHIGANIANS, 
(  \\IIOKI AS,  and  TAMAROIS,  by  Messrs.  Edwards  and  Cho- 
tt'au.  Commissioners,  in  which  certain  lands  in  Illinois,  not 
ceded  in  the  treaty  of  Vincennes,  in  1803,  were  relinquished. 
[Id,  Vol.  (>:  784.]" 

At  Saginaw,  September  24,  1819,  Lewis  Cass  concluded 
;i  tivaty  with  the  CHIPIM:\\  AS,  in  which  the  latter  ceded  an 
extensive  tract  in  the  region  of  the  Auglaize.  [Clarke's  Ces- 
sions, 301.] 

At  Fort  Harrison,  August  30, 1819,  the  KICKAPOOS,  of  the 
Vermillion,  ceded  all  their  right  to  lands  on  the  Wabash,  or 
any  of  iis  waters..  [Id,  30-1.] 

At  Edwards  ville.  July  30,  1819,  the  same  tribe  ceded  their 
land  between  the  Wabash  and  the  east  line  of  the  State  of 
Illinois,  northward  of  the  Vinrennes  tract.  [Id,  305.] 

At  Vincennes,  August  11,  1820,  the  WKAS  relinquished 
all  their  right  to  land  in  the  Wabash  country,  and  agreed  to 
remove  therefrom.  [Id,  308.] 

At  Chicago,  August  29,  1821,  Lewis  Cass  and  Solomon 
Sibley,  Commissioners,  concluded  a  treaty  with  the  OTTA- 
WAS.  CIIIPPKWAS,  and  POTTAWATTAMIES,  in  which  the 
latter  ceded  to  the  United  States  their  possessions  in  the 
west  and  south-west  part  of  Michigan,  with  certain  reser- 
vations. [Id,  309.] 

At  Prairie  des  Clm-ns.  August  19,  1825,  a  treaty  of  peace 
was  concluded  with  the  CIIIPPEWAS,  SACS,  Foxes,  MENO- 
MINTCS,  IOWAS.  Siorx,  W  INNKBAGOES.OTTAWAS,  and  POT- 
\ \\-ATTAMIE.S,  in  which  the  latter  agreed  upon  boundaries 
between  themselves,  and  surrendered  certain  territory  in 
Wisconsin.  [Id,  320.] 


154  INDIAN  CESSIONS  NORTHWEST  OF  THE 

At  Mississinewa,  upon  the  Wabasli,  September  23,  1826, 
a  treaty  was  concluded  with  the  MIAMIS,  by  Lewis  Cass, 
Jarnes  B.  Ray,  and  John  Tipton,  Commissioners,  in  which 
the  former  ceded  to  the  United  States  all  their  claim  to  land 
in  the  State  of  Indiana,  north  and  west  of  the  Wabash,  and 
the  cession  of  St.  Mary's,  concluded  October  6,  1S18,  with  a 
few  reservations.  [Id.,  324.] 

At  Foa  du  Lac,  August  5,  1826,  Lewis  Cass  and  Thomas 
L.  McKenney,  concluded  a  treaty  with  the  CHIPPEWAS,  by 
which  certain  differences  growing  out  of  the  treaty  of  Prairie 
des  Chiens  were  adjusted.  [Id.,  327.] 

At  Mississinewa,  October  16, 1826,  the  POTTAWATTAMIES 
ceded  to  the  United  States  a  large  tract  in  northern  Indiana. 
[Id.,  331.] 

At  Butte  des  Morts,  August  11,  1827,  Lewis  Cass  and 
Thomas  L.  McKenney  obtained  from  the  CHIPPEWAS  a  ces- 
sion of  lands  in  Wisconsin.  [A pp.  to  Laws  of  1829,  83.] 

At  St.  Joseph's,  September  19, 1827,  the  same  Commission- 
ers obtained  from  the  POTTAWATTAMIES,  a  cession  of  their 
lands  in  Michigan.  [Id.,  87.] 

At  Green  Bay,  August  25,  1828,  Lewis  Cass  and  Pierre 
Menard,  Commissioners,  concluded  with  the  WINNEBAGOES, 
POTTAWATAMIES,  CHIPPEWAS,  and  OTTAWAS,  a  treaty, 
ceding  a  large  tract  of  land  lying  south  of  the  river  Wis- 
consin. [Id.,  74.] 

At  Prairie  du  Ghien,  July  29,  1829,  the  CHIPPEWAS,  OT- 
TAWAS,  and  POTTAWATTAMIES  ceded  their  lands  situate  up- 
on the  Fox  river,  in  Illinois,  and  above  Rock  river,  in  Wis- 
consin, [A pp.  to  Laws  of  1830,  35,]  and  in  August  of  the  same 
year,  the  WINNEBAGOES  ceded  the  tract  between  the  Wiscon- 
sin arid  Rock  Rivers.  [Id.,  30.] 

At  Washington,  Feb.  28,  1831,  the  SENEGAS  ceded  their 
land  upon  the  Sandusky,  and  April  6,  1832,  they,  together 
with  the  SHAWANEES,  ceded  their  lands  between  the  Miami 
and  Scioto.  [App.  to  Laws  of  1831,  43,  152.] 


OHIO.  155 

At  Wapaghkonnetta,  August  8,  1831,  the  SHAWANEES 
ceded  their  land  in  the  county  of  Allen,  Ohio.  [Id.,  48.J 

At  Washington,  February  8,  1831,  the  MF.NOMONEES 
ceded  all  their  lands  southeast  of  Winnebago  lake,  Fox  riv- 
er and  Green  Bay.  [Id.,  62.] 

At  the  Indian  Reserve,  on  the  Miami  of  Lake  Erie,  Au- 
gust 30,  1831,  tho  OTTAWAS  ceded  the  Presque  Isle  Reser- 
vation, and  land  on  Blanchard's  Fork,  of  the  Auglaize,  and 
agreed  to  remove  west  of  the  Mississippi.  [Id.,  56.] 

At  McCutcheonsville,  January  19,  1832,  the  WYANDOTS 
ceded  the  Big  Spring  reservation,  in  Crawford  county,  Ohio. 
[Id,  60.] 

At  Castor  Hill,  October  27,  1832,  the  KASKASKIAS  ceded 
their  lands,  excepting  about  three  hundred  and  fifty  acres  in 
Illinois,  and  the  29th,  the  PIANKESHAWS  relinquished  their 
lands  in  Illinois.  [App.  to  Laws  of  1833,  19,  20.] 

At  Fort  Armstrong,  September  15,  1832,  Winfield  Scott 
and  John  Reynolds  procured  from  the  WINNEBAGOES,  all 
their  lands  south  and  east  of  the  Wisconsin  and  Fox  rivers. 
[Id,  23.] 

At  Maumec,  February  18, 1833,  the  OTTAWAS  relinquished 
the  Miami  River  ai:;i  .Miami  bay  reservations.  [Id,  57.] 

At  Chicago,  September  26,  1833,  the  CHIPPEWAS,  OTTA- 
WAS, and  POTT  AW  ATT.  \MIES  ceded  their  lands  on  the  western 
shore  of  lake  Michigan.  [App.  to  Laws  1831,  of  15.] 

At  the  Wabash  Forks,  October  23, 1834.  the  Mi  AMIS  ceded 
a  portion  of  the  Miami  reserve,  ten  sections  at  Racoon  village, 
twenty-three  thousand  acres  on  the  Wahash  river,  and  six 
sections  at  Fiat  Belly's  village.  [App.  to  Laws  of  1838,  9.] 

At  Tippecanoe,  April  11,  1836,  the  POTTAWATTAMIES 
ceded  thirty-six  sections  of  land  in  Indiana,  and  on  the  23d 
of  the  same  month,  the  WYANDOTS  ceded  a  portion  of  their 
reservation  in  Crawford  county,  arid  a  portion  of  Cranberry 
swamp.  [App.  to  Laws  of  1836,  37,  61.] 

At  Yellow  River,  August  5,  1836,  the  POTTAWATTAMIES 


156  TERRITORY  NORTHWEST  OF  THE 

relinquished  twenty-six  sections  of  land  in  western  Indiana. 
[App.  to  Laws  of  1837,  130.] 

At  Detroit,  January  14,  1837,  Henry  R,  Schoolcraft,  Com- 
missioner, procured  from  the  CHIPPEWAS  a  cession  of  one 
hundred  and  two  thousand  Four  hundred  acres  within  the 
State  of  Michigan.  [App.  to  Laws  of  1838,  45.] 

At  Washington.  November  1,  1837,  the  WINNEBAGOES 
relinquished  all  claim  to  lands  east  of  the  Mississippi.  [Id., 
39.] 

At  the  Wabash  Forks,  November  6,  1838,  the  MIAMIS 
ceded  the  Wabash  river,  Abouette,  Flat  Rock,  and  Seek's 
Village  reservations.  [App.  to  Laws  of  1839,  27.] 

By  means  of  the  foregoing  cessions,  the  United  States 
extinguished  the  Indian  right  of  occupancy  to  all  the  territory 
northwest  of  the  river  Ohio,  except  a  few  small  reservations 
since  relinquished,  or  which  are  still  occupied  by  fragments 
of  tribes  that  yet  linger  eastward  of  the  Mississippi. 

XIII.  EXTRACT  FROM  AN  ORDINANCE  OF  CONGRESS  CON- 
CERNING THE  TERRITORY  NORTHWEST  OF  THE  OHIO, 
PASSED  JULY  13,  1787. 

'•'Be  it  ordained  by  the  United  States  in  Congress  assembled, 
That  the  said  territory,  for  the  purposes  of  temporary  gov- 
ernment, be  one  district ;  subject,  however,  to  be  divided  in- 
to two  districts,  as  future  circumstances  may,  in  the  opinion 
of  Congress,  make  it  expedient. 

"  Be  it  ordained  by  the  authority  aforesaid,  That  the  estates, 
both  of  resident  arid  non-resident  proprietors  in  the  said  terri- 
tory, dying  intestate,  shall  descend  to,  and  be  distributed 
among  their  children,  and  the  descendants  of  a  deceased 
child  or  grand  child  to  take  the  share  of  their  deceased  pa- 
rent in  equal  parts  among  them :  and  where  there  shall  be 
no  children  or  descendants,  then  in  equal  parts  to  the  next  of 
kin,  in  equal  degree  :  and  among  collaterals,  the  children  of 
a  deceased  brother  or  sister  of  the  intestate  shall  have,  in 


OHIO.  157 

equal  parts  among  them,  their  deceased  parent's  share;  and 
there  shall,  in  no  case,  be  a  distinction  between  kindred  of  the 
whole  and  half  blood;  saving  in  all  cases,  to  the  widow  of 
the  intestate,  her  third  part  of  the  real  estate  for  life,  and  one- 
third  part  of  the  personal  estate  ;  and  this  law  relative  to  de- 
scents and  dower,  shall  remain  in  full  force,  until  altered  by 
the  legislature  of  the  district.  And  until  the  Governor  and 
Judges  shall  adopt  laws  as  hereinafter  mentioned,  estates  in 
the  raid  territory  may  be  devised  or  bequeathed  by  wills  in 
writing,  signed  and  sealed  by  him  or  her,  in  whom  the  es- 
tate may  be,  (being  of  full  age,)  and  attested  by  three  wit- 
nesses ;  and  real  estates  may  be  conveyed  by  lease  and  re- 
lease, or  bargain  and  sale,  signed,  sealed  and  delivered,  by 
the  person,  being  of  full  age.  in  whom  the  estate  may  be,  and 
attested  by  two  witnesses:  provided  such  wills  be  duly 
proved,  and  such  conveyances  be  acknowledged,  or  the  exe- 
cution thereof  duly  proved,  and  be  recorded  within  one  year 
after  proper  magistrates,  courts,  and  registers,  shall  be  appoint- 
ed for  that  purpose  ;  and  personal  property  may  be  transfer- 
red by  delivery  ;  saving,  however,  to  the  French  and  Cana- 
dian inhabitants,  and  other  settlers  of  the  Kaskaskias,  Saint 
Vincents,  and  the  neighboring  villages,  who  have  heretofore 
professed  themselves  citizens  of  Virginia,  their  laws  and  cus- 
toms now  in  force  among  them,  relative  to  the  descent  and 
conveyance  of  property. 

"  It  is  hereby  ordained  and  declared,  by  the  authority  afore- 
said, that  the  following  articles  shall  be  considered  as  arti- 
cles of  compact  between  the  original  States,  and  the  people 
and  States  in  the  said  territory,  and  forever  remain  unalter- 
able, unless  by  common  consent,  to  wit : 

"  ART.  I.  No  person,  demeaning  himself  in  a  peaceable 
and  orderly  manner,  shall  ever  be  molested  on  account  of  his 
mode  of  worship,  or  religious  sentiments,  in  the  said  ter- 
ritory. 

"ART.  II.  The  inhabitants  of  the  said  territory  shall  al- 
ways be  entitled  to  the  benefit  of  the  writ  of  habeas  corpus, 


158 


TERRITORY  NORTHWEST  OF  THE 


and  of  the  trial  by  jury ;  of  a  proportionate  representation  of 
the  people  in  the  Legislature,  and  of  judicial  proceedings  ac- 
cording to  the  course  of  the  common  law.  All  persons  shall 
be  bailable,  unless  for  capital  offences,  where  the  proof  shall 
be  evident,  or  the  presumption  great.  All  fines  shall  be 
moderate  ;  and  no  cruel  or  unusual  punishments  shall  be  in- 
flicted. No  man  shall  be  deprived  of  his  liberty  or  property, 
but  by  the  judgment  of  his  peers,  or  the  law  of  the  land; 
and  should  the  public  exigencies  make  it  necessary,  for  the 
common  preservation,  to  take  any  person's  property,  or  to 
demand  his  particular  services,  full  compensation  shall  be 
made  for  the  same.  And,  in  the  just  preservation  of  rights 
and  property,  it  is  understood  and  declared,  that  no  law 
ought  ever  to  be  made,  or  have  force  in  the  said  territory, 
that  shall,  in  any  manner  whatever,  interfere  with,  or  affect 
private  contracts  or  engagements,  bona  fide,  and  without 
fraud,  previously  formed. 

"ART.  III.  Religion,  morality,  and  knowledge,  being  neces- 
sary to  good  government  and  the  happiness  of  mankind, 
schools  and  the  means  of  education  shall  forever  be  encour- 
aged. The  utmost  good  faith  shall  always  bs  observed 
towards  the  Indians ;  their  lands  and  property  shall  never  be 
taken  from  them  without  their  consent ;  and,  in  their  prop- 
erty, rights,  and  liberty,  they  never  shall  be  invaded  or  dis- 
turbed, unless  in  just  and  lawful  wars  authorized  by  Con- 
gress ;  but  laws  founded  in  justice  and  humanity  shall  from 
time  to  time  be  made,  for  preventing  wrongs  being  done  to 
them,  and  for  preserving  peace  and  friendship  with  them. 

"ART.  IV.  The  said  territory,  and  the  Sates  formed  therein, 
shall  forever  remain  a  part  of  this  confederacy  of  the  United 
States  of  America,  subject  to  the  articles  of  confederation, 
and  to  such  alterations  therein  as  shall  be  constitutionally 
made ;  and  to  all  the  acts  and  ordinances  of  the  United 
States  in  Congress  assembled,  conformable  thereto.  The  in- 
habitants and  settlers  in  the  said  territory  shall  be  subject  to 
pay  a  part  of  the  federal  debts,  contracted  or  to  be  contract- 


6HIO.  150 

ed,  and  a  proportional  part  of  the  expenses  of  government, 
to  be  apportioned  on  them  by  Congress,  according  to  the 
same  common  rule  and  measure  by  which  apportionments 
thereof  shall  be  made  on  the  other  States ;  and  the  taxes  for 
paying  their  proportion,  shall  be  laid  and  levied  by  the  au- 
thority and  direction  of  the  Legislature  of  the  District  or 
Districts,  or  new  States,  as  in  the  original  States,  within  the 
time  agreed  upon  by  the  United  States  in  Congress  assem- 
bled. The  Legislatures  of  those  Districts,  or  new  States, 
shall  never  interfere  with  the  primary  disposal  of  the  soil  by 
the  United  States  in  Congress  assembled,  nor  with  any  regu- 
lations Congress  may  find  necessary,  for  securing  the  title  in 
such  soil,  to  the  bona  fide  purchasers.  No  tax  shall  bs  im- 
posed on  lands,  the  property  of  the  United  States ;  and  in 
no  case  shall  non-resident  proprietors  be  taxed  higher  than 
residents.  The  navigable  waters  leading  into  the  Missis- 
sippi and  St.  Lawrence,  and  the  carrying  places  between  the 
same,  shall  be  common  highways,  and  forever  free,  as  well 
to  the  inhabitants  of  the  said  territory,  as  to  the  citizens  of 
the  United  States,  and  those  of  any  other  States  that  may 
be  admitted  into  the  confederacy,  without  any  tax,  impost, 
or  duty  therefor. 

"  AIIT.  V.  There  shall  be  formed  in  the  said  territory,  not 
less  thar/  three,  nor  more  than  five  States ;  and  the  bounda- 
ries of  the  States,  as  soon  as  Virginia  shall  alter  her  act  of 
cession  and  consent  to  the  same,  shall  become  fixed  and  es- 
tablished as  follows,  to  wit:  The  western  State  in  the  said 
territory  shall  be  bounded  by  the  Mississippi,  the  Ohio,  and 
Wabash  rivers ;  a  direct  line  drawn  from  the  Wabash  and 
Post  Vincents,  due  north,  to  the  territorial  line  between  the 
United  States  and  Canada  ;  and  by  the  said  territorial  line  to 
the  Lake  of  the  Woods  and  Mississippi.  The  middle  State 
shall  bs  bounded  by  the  said  direct  line,  the  Wabash,  from 
Post  Vincents  to  the  Ohio,  by  the  Ohio  by  a  direct  line 
drawn  due  north,  from  the  mouth  of  the  great  Miami  to  the 
said  territorial  line.  The  eastern  State  shall  be  bounded  by 

f 


160  TERRITORY  NORTHWEST  OF  THE) 

the  last  mentioned  direct  line,  the  Ohio,  Pennsylvania,  and 
the  said  territorial  line :  provided,  however,  and  it  is  further 
understood  and  declared,  that  the  boundaries  of  these  three 
States  shall  be  subject  so  far  to  be  altered,  that,  if  Congress 
shall  hereafter  find  it  expedient,  they  shall  have  authority  to 
form  one  or  two  States,  in  that  part  of  the  said  territory 
which  lies  north  of  an  east  and  west  line  drawn  through 
the  southerly  bend  £>r  extreme  of  Lake  Michigan.  And 
whenever  any  of  the  said  States  shall  have  sixty  thousand 
free  inhabitants  therein,  such  State  shall  be  admitted,  by  its 
delegates,  into  the  Congress  of  the  United  States,  on  an  equal 
footing  with  the  original  States,  in  all  respects  whatever ; 
and  shall  be  at  liberty  to  form  a  permanent  constitution  and 
State  government:  provided  the  constitution  and  govern- 
ment, so  to  be  formed,  shall  be  republican,  and  in  conformity 
to  the  principles  contained  in  these  articles ;  and,  so  far  as  it 
can  be  consistent  with  the  general  interest  of  the  confederacy, 
such  admission  shall  be  allowed  at  an  earlier  period,  and 
when  there  may  be  a  less  number  of  free  inhabitants  in  the 
State  than  sixty  thousand. 

"  ART.  VI.  There  shall  be  neither  slavery  nor  involuntary 
servitude  in  the  said  territory,  otherwise  than  in  the  punish- 
ment of  crimes,  whereof  the  parties  shall  have  been  duly 
convicted :  provided,  always,  that  any  person  escaping  into 
the  same,  from  whom  labor  or  service  is  lawfully  claimed  in 
any  one  of  the  original  States,  such  fugitive  may  be  lawfully 
reclaimed,  and  conveyed  to  the  person  claiming  his  or  her 
labor  or  service  as  aforesaid.'7*  [Peter's  U.  S.  Stat.,  Vol.  1,  57.] 


*  On  the  7th  of  May,  1800,  thp  north-western  territory  was  divided ;  and  on  the 
30th  of  April,  1802,  an  act  to  enable  the  people  of  the  eastern  division  to  form  a 
constitution  and  State  government,  and  for  the  admission  of  such  State  into  the 
Union  on  an  equal  footing  with  the  original  States,  was  approved,  by  which  a  con- 
vention to  form  a  constitution  was  authorized  to  be  held  at  Chilicothe.  This  act 
offered  to  the  convention  a  proposal  that  section  sixteen  in  every  township  be  granted 
to  such  township,  for  the  use  of  schools,  and  that  the  Sciota  and  Muskingum  Salt 
Springs  be  granted  to  the  State,  to  be  used  as  its  legislatiu-e  should  direct.  [Peter's 
U.  8.  Stat.,  174.] 


OHIO.  161 

XIV.     THE  CONSTITUTION'  OF  OHIO. 

On  the  twenty-ninth  of  November,  in  the  year  one  thou- 
sand eight  hundred  and  two,  the  Constitution  of  Ohio  was 
adopted  hi  convention  at  Chilicothe.  It  is  silent  on  the  sub- 
ject of  land  titles,  and  leaves  the  regulation  of  tenures  to  the 
legislature.  [See  Appendix.] 

XV.     LAND  TITLES  GENERALLY  IN  OHIO. 

By  the  treaty  which  terminated  the  War  of  the  Revolution 
with  Great  Britain,  and  the  cessions  of  Massachusetts,  Con- 
necticut, New- York,  and  Virginia,  the  United  States  Govern- 
ment acquired  a  valid  estate  in  fee,  to  all  the  land  embraced 
within  the  territory  northwest  of  the  Ohio,  except  the  Con- 
necticut and  Virginia  reservations,  which  remained  the 
property  of  those  States  respectively. 

Grants,  either  by  the  General  or  the  State  Governments,  of 
land  owned  by  them  respectively,  convey  a  valid  title  to 
States,  companies  or  individuals,  competent  to  receive  patents 
therefor.* 

"A  i  to  the  grantee.  [13  Peters, 

493.] 

A  land  patent  from  the  United  States  is  conclusive  in  an  action  at  common  law. 
[Id.,  430.] 

The  sci/.in  of  lands  belonging  to  the  Indian  tribes,  is  in  the  Sovereign,  and  tho 
Ii.iliaiis  are  mere  occupants.  A  purchaser  from  them  can  only  acquire  the  Indian 
title,  and  they  may  iv-unie  it,  and  i:r  Bnt  disposition  of  it.  [Paine,  45?'.] 

The  title  to  Im.d  uml-r  in-ints  in  1773  and  1775,  by  the  Illinois  and  Piunkeshaw 
nations,  cannot  be  iver^i/r/ed  in  the  courts  of  the  United  States.  [8  Whcaton,  543.} 

The  "i'l'ind  by  Indians,  does  not  affect  the  validity  of  patents  granted 

by  the  State.  Tin-  ri-'it  of  :i  State  to  grunt  the  land  of  Indians,  without  their  consent, 
is  a  political  (ju .>tion.  The  patent,  however,  is  not  affected  by  the  possession  of 
the  Indians.  [3  John,  375.] 

A  sale  of  land*;,  surveyed,  but  not  patented,  in  the  Virginia  Military  District,  passes 
the  whole  interest  of  the  holder  to  the  purchaser.  [7  Ham.,  150.] 

In  Ohio,  the  owners  of  land  situated  upon  the  banks  of  navigable  streams,  running 
through  the  State,  are  owners  of  the  beds  of  the  streams  to  the  middle,  subject  or.ly 
to  the  easement  of  navigation.  [3  Ham.,  495.] 

A  patent  issued  on  a  Virginia  Military  land  warrant,  gives  a  title  which,  though 
cxuminable,  has  no  presumption  against  it.  [7  Wheaton,  122.] 

7* 


162  EXECUTION  OF  DEEDS  IN 

The  early  grants  of  land  to  the  Ohio  Company  of  Asso- 
ciates, to  John  Cleves  Simmes.  to  the  United  Brethren,  to  the 
Canadian  refugees,  and  to  the  French  settlers,  as  well  as  to 
others,  carried  to  the  purchasers  an  absolute  fee  of  the  tracts 
or  parcels  granted. 

The  grants  to  the  State  of  Ohio,  for  certain  specified  objects, 
vested  the  State  with  a  valid  title. 

In  respect  to  the  different  kinds  of  estates  in  land,  the  regu- 
lations in  Ohio  are  substantially  the  same  as  in  New-York. 
[Ante  79.]  All  feudal  tenures  are  abolished,  save  rents  and 
services  certain,  and  subject  to  the  liability  to  escheat,  the 
entire  and  absolute  property  vests  in  the  owners  according 
to  the  nature  of  their  respective  estates. 

XVI.     EXECUTION  OF  DEEDS    AND   MORTGAGES  IN  OHIO. 

The  Revised  Statutes  of  Ohio  provide  that  all  conveyances 
of  land  shall  be  by  deed,  duly  executed  and  acknowledged, 
or  proven  by  the  grantor  or  his  lawful  agent,  and  that  land 
cannot  otherwise  be  conveyed,  affected,  or  incumbered. 
They  prescribe  no  form  for  deeds ;  wherefore  any  written 
or  printed  document  which  sets  forth  with  precision  the  names 
of  the  parties,  the  land  intended  to  be  conveyed,  and  the  terms 
and  conditions  of  the  grant,  may  be  accredited  as  a  deed,  if 
it  be  legible  and  evince  an  intention  and  purpose  to  convey. 

Every  man  above  the  age  of  twenty-one  years,  and  every  un- 
married woman  above  the  age  of  eighteen  years,  competent 
to  hold  lands,  have  the  right  to  convey.  The  deed,  to  be  pro- 
perly executed,  must  be  prepared  on  paper,  parchment,  or  some 
similar  substance  capable  of  being  delivered  to  the  Grantee. 

//  must  be  signed.  One  section  of  the  statute  requires 
"every  deed,  mortgage,  or  other  instrument  of  writing,  by 
which  any  land,  tenement  or  hereditament  shall  be  con- 
veyed or  otherwise  affected  or  incumbered  in  law/'  to  bo 
signed  by  the  grantor,  grantors,  or  makers,  yet  by  another, 
"deeds  and  mortgages  may  be  executed  by  an  attorney  of 


OHIO.  163 

the  owners,  where  such  attorney  has  a  written  power  execu- 
ted by  the  owners  or  owner  of  the  estate,  and  attested  and 
acknowledged  with  all  the  formalities  required  to  a  deed." 
The  signing  consists  in  writing  the  name  of  the  grantor  or 
Grantors,  as  the  case  may  be,  at  the  bottom  of  the  instrument, 
or  in  the  event  of  inability  to  write  the  name,  in  the  making 
of  such  a  mark  thereto  as  the  grantor  is  accustomed  to  sub- 
scribe as  his  or  her  sign  manual. 

It  must  be  scaled.  The  statute,  above  in  part  cited,  also 
provides  that  instruments  in  writing-  affecting  the  title  to  laud 
shall  be  sealed  by  the  g  ran  tor.  The  practice  and  the  manner 
of  sealing  with  wax,  wafer,  or  other  adhesive  and  impressive 
substances,  were  treated  of  at  length  in  a  previous  chapter. 
[Ante  85.]  It  is  believed  that  the  common  law  rule  ought  not 
to  be  relaxed ;  that  the  solemnity  of  a  deed  is  measurably 
impaired  by  the  allowance  of  substitutes  for  seals.  A  differ- 
ent view,  however,  has  been  taken,  and  the  initials  "L.  S." 
enclosed  in  an  indented  circle.are  recognized  in  Ohio  as  a  valid 
sealing  of  a  deed,  [4  K.  C.,  453,]  it  being  held  that  the  letters 
L.  S.  sufficiently  indicate  the  purpose  of  the  grantor  to  seal  his 
deed.  Wax  and  wafers  are  generally  used,  and  good  con- 
veyancers consider  their  use  the  preferable  mode  of  sealing. 

It  must  be  n-iinesstd.  The  statute  requires  the  signing  and 
sealing  to  be  :> in  th«  presence  of  two  witnesses,  who  shall 
attest  such  signing  and  sealing,  and  subscribe  their  names 
to  such  attestation."  Any  person  of  sufficient  age  and  discre- 
tion to  understand  the  nature  of  the  act  done,  is  competent  to 
be  a  witness  to  a  deed,  but  it  is  imprudent  to  make  choice 
of  persons  as  witnesses  who  are  incompetent  to  be  sworn 
in  any  court  having  jurisdiction  of  the  matter. 

It  must  be  delivered.  This  is  not  in  terms  required,  nev- 
ertheless, it  is  provided  by  statute  that  a  delivery  of  a  con- 
veyance, duly  executed,  shall  be  valid  and  effectual  to  pass 
the  title  of  the  grantor  or  grantors  in  and  to  the  land  in 


164  EXECUTION  OF  DEEDS  IN 

question;  leaving  in  full. force  the  requirements  of  the  com- 
mon law  concerning  the  delivery.  [Ante  85.] 

When  conveyances  are  executed  by  some  person  other 
than  the  grantor  or  grantors,  but  in  his  or  their  behalf,  such 
person  must  have  been  thereunto  authorized  by  a  "written 
power  signed,  sealed,  attested  and  acknowledged  by  the 
owner  or  owners  of  the  estate ;  and  when  the  estate  of  a 
femme  covert  is  proposed  to  be  conveyed  by  attorney,  or  her 
right  of  dower  in  any  lands,  tenements,  or  hereditaments 
relinquished,  she  must  have  joined  her  husband  in  the  exe- 
cution of  the  power,  and  have  acknowledged  the  same 
separately  and  apart  from  him,  according  to  the  provisions 
concerning  conveyances  by  husband  and  wife." 

Any  conveyance,  however,  made  under  a  power  of  attorney 
from  a  husband  and  wife,  must  contain  the  name  of  the  wife, 
"and  will,  if  thus  executed,  divest  her  of  her  estate  in  the 
lands,  tenements  and  hereditaments  so  conveved.  or  herri-ilit 

3  » •  7  O 

of  dower  therein,  as  fully  as  if  such  conveyance  were  execu- 
ted by  her  in  person  ;  provided,  that  at  any  time  previous  to 
the  sale  and  conveyance  of  any  lands,  tenements  or  heredit- 
aments, so  authorized  to  be  sold  and  conveyed,  the  wife  shall 
have  not  revoked  such  power  of  attorney."  The  recording 
of  a  power  of  attorney  is  another  pre-requisite  to  a  convey- 
ance by  the  attorney.  The  statute  on  this  subject  is  imper- 
ative and  therefore  establishes  a  rule  which  is  inflexible. 
This  must  be  done  in  all  cases  before  the  execution,  by  an 
attorney,  of  a  deed  or  mortgage. 

In  respect  to  foreign  conveyances  or  incumbrances  upon 
lauds  in  Ohio,  it  is  provided  that  they  shall  be  executed  either 
according  to  the  laws  of  the  State  where  they  arc  made,  or 
according  to  the  laws  of  Ohio.  Either  will  answer  the  law, 
and  when  thus  executed,  a  deed  or  mortgage  is  held  to  be  as 
valid  as  if  executed  within  this  State,  in  conformity  with  the 
foregoing  provisions.  [R.  S.  of  Ohio,  360.] 


OHro.  165 

It  may  be  well  to  notice,  in  this  connection,  that  married 
women  in  Ohio  may  have  an  interest  in  land  beyond  their 
dower  right,  which,  by  an  act  passed  February  28,  1846, 
cannot  be  aliened  by  the  husband.  This  act  provides  that 
the  interest  of  any  married  man  in  the  real  estate  of  his  wife, 
belonging  to  her  at  the  time  of  their  intermarriage,  or  which 
may  come  to  her  by  devise,  gift  or  inheritance  during  cover- 
ture, or  which  may  have  been  purchased  with  her  sole  and 
separate  money,  or  other  property,  and  during  her  coverture 
shall  have  been  deeded  to  her,  or  to  any  trustee  in  trust  for 
her.  shall  not  be  liable  to  be  taken  by  any  process  of  law  or 
chancery  for  the  payment  of  his  debts  during  the  life  of  the 
wife,  or  the  life  or  lives  of  the  heir  or  heirs  of  her  body."  [Id., 
Sec.  1.]  All  conveyances  and  incumbrances  of  the  husband's 
interest  in  the  real  estate  of  the  wife,  in  the  first  section  men- 
tioned, shall  be  void  and  of  no  effect  during  the  life  of  the 
wife,  and  during  the  life  or  lives  of  the  heir  or  heirs  of  her 
body,  unless  an  instrument  of  such  conveyance  or  incum- 
brance  shall  have  been  executed,  attested  and  acknowledged 
according  to  the  laws  of  this  State,  for  the  conveyance  or 
incumbrance  of  the  estate  of  the  wife  in  lands,  tenements 
and  hereditaments,  situate  within  this  State.*  [Id..  Sec.  2.] 


*  A  deed  or  grant  pnrportini  tantor 

ily  a  joint    tenancy,  or  tenancy  1:1   coiinnon,  is   not  void  but  conveys   all  the 
v's  interest  in  the  ]>;•  -.'iiisrs.      [2  Ham.,  110.] 

In  Ohio,  it  is  indispetu  .  that  the  sruntee  he  ra- 

it,    lie  ii"  ion  iii  being-  at  the  time  of  its  execution. 

!  Horn.,  157.] 

A  v;ilkl   title  to  land  can  be  acquired  only  through  a  written  conveyance.     A 
parol  exchange  d"  ->'T  title,  and  did  not  before  the  statute  of  frauds,  even 

though  the  p:iriie*  had  taken  actual  p  [1  Ham.,  243.] 

A  title  to  land  rannot  be  conveyed  by  an  assignment  endorsed  upon  a  deed.     [2 
Ham.,  221.] 

•ssion  of  land  for  twenty  year-;  rnises  the  presumption  of  a  deed,  but  p. 
sion  alone  is  not  sufficient.     [1  Ham. ,330.] 

A  deed  made  for  a  gambling  consideration  is  void,  and  the  land  is  forfeited  to  the 
heirs  of  the  grantor,  subject  to  his  debts.     [1  Ham.,  305.] 


166  ACKNOWLEDGMENT  OF  DEEDS  IN 


XVIII.     THE    PROOF    AND    ACKNOWLEDGMENT     OF    DEEDS 
AND    MORTGAGES. 

Not  only  are  all  deeds  and  mortgages  required  to  be 
signed  and  sealed  by  the  grantor,  but  to  be  acknowledged 
in  the  presence  of  two  witnesses.  The  phraseology  of  the 
statute  seems  to  contemplate  an  acknowledgment  before  wit- 
nesses. The  language  is,  "such  signing  and  sealing  shall 
be  acknowledged  by  such  grantor  in  the  presence  of  two 
witnesses,  who  shall  attest  such  signing  and  sealing,  and 
subscribe  their  names  to  such  attestation  ;  and  such  signing 
and  sealing  shall  also  be  acknowledged  by  such  grantor 
or  grantors,  maker  or  makers,  before  a  Judge  of  the  Su- 
preme Court,  or  of  the  Court  of  Common  Pleas,  a  Justice 
of  the  Peace,  Notary  Public,  Mayor,  or  other  presiding  officer 
of  an  incorporated  town  or  city,  who  shall  certify  such  ac- 
knowledgment on  the  same  sheet  on  which  such  deed,  mort- 
gage or  other  instrument  of  writing  may  be  printed  or  writ- 
ten." It  is  presumed  that  it  was  not  the  intention  of  the 
General  Assembly  to  require  the  witnesses  to  attend  before 
the  acknowledging  officer  in  cases  where  the  grantor  or 
grantors  are  personally  known  to  him,  yet  the  language  em- 
ployed requires  it.  If  the  officer  be  personally  acquainted 
with  the  grantors  he  may  take  their  acknowledgment  at 
once  upon  their  appearance  before  him,  but  where  he  is  un- 
acquainted with  them  and  cannot  from  personal  knowledge 
determine  whether  they  are  the  persons  named  in  and  who 
executed  the  deed  or  mortgage  in  question,  it  is  his  duty  to 
examine  on  oath  one  or  both  of  the  witnesses  to  the  instru- 
ment as  to  their  identity,  and  thus  became  legally  informed 
in  respect  thereto,  to  his  satisfaction.  He  must  be  satisfied 
of  the  fact. 

"  And  when  a  husband  and  wife,  (she  being  eighteen 
years  of  age  or  upwards,)  shall  within  the  State  of  Ohio, 


OHIO.  167 

execute  any  deed,  mortgage,  or  other  instrument  of  writing 
for  the  conveyance  or  incumbrance  of  the  estate  of  the  wife, 
or  her  riafht  of  dower  in  any  land  tenement  or  heriditament 
situate  within  this  state,  such  deed,  mortgage  or  other  instru- 
ment of  writing  shall  be  signed  and  sealed  by  the  husband 
and  wife ;  and  such  signature  and  sealing  shall  be  attested 
and  acknowledged  in  the  manner  hereinbefore  prescribed  ; 
and  in  addition  thereto,  the  officer  before  whom  such  ac- 
knowledgment shall  be  made,  shall  examine  the  wife  sepa- 
rate and  apart  from  her  husband,  and  shall  read  or  otherwise 
make  known  to  her,  the  contents  of  such  deeds,  mortgage  or 
other  instrument  of  writing,  and  if  upon  such  separate  ex- 
amination she  shall  declare  that  she  did  voluntarily  sign, 
seal,  and  deliver  the  sumo,  and  that  she  is  still  satisfied 
therewith,  such  officer  shall  certify  such  examination  and 
d'-claration  of  the  wi  <T  with  the  acknowledgment 

said  of  such  deed,  mortgage  or  instrument  of  writing, 
and  subscribe  his  name  thereto/'  Every  acknowledgment 
must  be  certified,  whether  of  husband  and  wife,  or  otherwise, 
ami  that  the  officer  is  "satisfied  from  personal  knowledge, 
or  from  the  testimony  of  some  witness,  (naming  him)  that 
tin;  person  or  persons  making  such  acknowledgment  is,  or 
are,  the  person  or  persons  whom  they  represent  themselves 
to  be,  and  shall  subscribe  his  name  to  such  certificate."  All 
the  Ib.cts  requisite  to  a  lawful  acknowledgment  must  be 
certified.  A  certificate  that  a  deed  was  acknowledged  accord- 
ing to  law  has  been  held  to  be  defective.* 

The  foregoing  directions  relate  exclusively  to  ncknow- 

*Thf  laws  of  tli  •  ;••  of  17!)'.  ;ip.l   1802,  virtually  n- 

-  to  the.  execution,  proof 
[1  Hum.,  12.] 
An  Uiiiu:u  S;;i:-  -  ,]\i.\^-  niny,  in  ;my  p;ut  of  llio  Talon,  Uike.  arkno\vM--meut3  of 

.  i;i:«l  i.i  tho  territory  over  whir.h  hi  'cud.      [Id.,  14.] 

If  t:  'n»  an  acknowledgment  of  a  deed  jrive?  himself  no  official  char- 

.  ivi;..-i-  i'i  liio  certificate  or  subscription,   it  i»  insufficient,  and  the  record  i* 
ar  and  inoperative.     [~  Ham.,  .r>.~.] 


168  DEEDS  AND  MORTGAGES  OF  LAND  IN 

led^ments  taken  within  the  State  of  Ohio.  In  relation  to 
foreign  acknowledgments  the  statute  provides  "  that  all 
deeds,  mortgages;  powers  of  attorney,  and  other  instruments 
of  writing  for  the  conveyance  or  incumbrance  of  any  lands, 
tenements  or  hereditaments  situate  within  this  State,  execu- 
ted acknowledged  or  proved  in  any  other  State  in  conformity 
with  the  laws  of  such  State,  territory  or  country,  or  in  con- 
formity with  the  laws  of  this  State,  shall  be  as  valid  as  if 
executed  within  this  State  in  conformity  with  the  foregoing 
provisions."  To  entitle  a  deed  so  executed  in  another  State 
to  be  read  in  evidence  or  recorded,  there  must  be  attached 
thereto  a  certificate  under  the  official  seal  of  the  County  Clerk, 
or  other  officer  who  keeps  the  rolls  of  office,  signed  by  the 
acknowledging  officer,  setting  forth  the  fact  that  the  person, 
whose  name  appears  to  the  certificate  of  acknowledgment, 
was  at  the  time  of  taking  the  same,  a  Judge,  Justice  of  the 
Peace,  Notary  Public,  or  Mayor,  as  the  case  may  be,  duly 
commissioned  and  sworn,  and  that  by  the  laws  of  the  State, 
he  was  empowered  to  take  said  acknowledgment,  and  further, 
that  he  is  acquainted  with  the  hand  writing  of  such  ac- 
knowledging officer,  and  that  he  believes  his  signature  to  said 
certificate  annexed,  to  be  genuine. 

XIX.  THE  RECORDING  OF  DEEDS  AND  MORTGAGES  IN 
OHIO  AND  THE  EFFECT  THEREOF. 

A  County  Recorder  is  provided  by  the  laws  of  Ohio,  who 
is  required  to  keep  an  office  at  the  county  seat,  and  in  proper 
books  to  be  provided  for  that  purpose,  to  record  all  deeds, 
mortgages  and  other  instruments  in  writing  affecting  the  title 
to  land  in  the  same  county,  which  shall  have  been  executed 
attested  and  acknowledged  according  to  law.  This  duty  is 
however  subject  to  the  payment  of  his  fees,  which  he  may 
require  on  entering  any  deed  in  his  office.  The  recording 
of  deeds  is  a  safe  method  of  preserving  munimentsof  title ; 
enables  the  owner  to  produce  at  ail  times  documentary  ev- 


OHIO.  169 

idence  thereof,  and  protects  him  against  stealthy  conveyan- 
ces, by  his  grantor,  to  others. 

Deeds  are  required  to  be  recorded  in  the  proper  of- 
fice within  six  months  from  the  time  of  their  execution. 
Unrecorded  deeds  are  good  as  against  the  grantor  and  his 
heirs,  and  void  as  to  subsequent  bona  fide  purchasers  whose 
deeds  shall  have  been  recorded.* 

The  act  provides  that  mortgages  "  shall  be  recorded  in  the 
office  of  the  recorder  of  the  county  in  which  such  mortgaged 
premises  are  situated,  and  shall  take  effect  from  the  time  of 
presentation  for  record  ;  the  first  presented  shall  be  the  first 
recorded  and  the  first  recorded  shall  have  preference.''  t 

*In  Ohio,  a  deed  to  a  bona  fide  purchaser  need  not  be  recorded  as  against  a  prior 
unrecorded  deed.  [1.  Pet.,  552.] 

In  general,  notice  of  an  unrecorded  deed  is  equivalent  to  a  record  of  a  deed,  and 
will  destroy  the  effect  of  a  deed  subsequently  registered.  [1.  Ham.,  264.] 

But  an  implied  notice  of  a  prior  unregistered  deed,  will  not  be  sufficient  to  set 
loiilc  a  subsequent  deed.  [Idem.] 

t  Ohio  contains  the  following  counties,  each  of  which  is  a  recording  district  for  all 
conveyances  affecting  land  therein,  and  the  county  seat  therein  the  location  of  the 
recorder's  office.  For  the  benefit  of  non-resident  land  owners,  both  are  given ;  the 
former  in  small  capital  letters,  th"  latter  in  Roman  letters,  viy.  :  ADAMS,  West  Union; 
ALLEN,  Lima;  ASHTABOLA,  Jefferson;  ATHENS,  Athens;  BELMONT,  St.  Clairs- 
ville;  BROWN,  Georgetown;  BUTLER,  Hamilton;  CARROLL,  Carrollton ;  CHAM- 
PAIGN, Urbanna;  CLARK,  Springfield;  CLERMONT,  Batavia;  CLINTON,  Wilmington; 
COLUMBIANA,  New-Lisbon;  COSHOCTON,  Coshocton ;  CRAWFORD,  Bucyrus :  CUY- 
AHOGA,  Cleveland  ;  DARKE,  Greenville;  DELAWARE,  Delaware  ;  ERIE,  Sandusky 
City;  FAIRFIELD,  Lancaster;  FAYETTE,  Washington;  FRANKLIN,  Columbus;  GAL- 
MA,  Gallipolis ;  GEAUGA,  Chardon;  GREENE,  Xenia ;  GUERNSEY,  Cambridge; 
HAMILTON,  Cincinnati ;  HANCOCK,  Findlay ;  HAHDIN,  Kenton;  HARRISON,  Cadiz; 
HENRY,  Napoleon;  HIGHLAND,  Hillsboro' :  HOCKING,  Logan;  HOLMES,  Millers- 
burg;  HURON,  Norwalk;  JACKSON,  Jackson;  JEFFERSON,  Steubenville ;  KNOX, 
Mount  Vernon;  LAKE,  Painesville;  LAWRENCE,  Burlington;  LICKING,  Newark; 
LOGAN,  Belle  Fontaine;  LORAIN,  Elyria;  LUCAS,  Toledo;  MADISON,  London; 
MARION,  Marion ;  MEDINA,  Medina;  MEIGS,  Chester;  MERCER,  Celina;  MIAMI 
Troy;  MONROE,  Woodfield ;  MONTGOMERY,  Dayton;  MORGAN,  McConnelsville ; 
MUSKIXGUM,  Zanesville;  OTTAWA,  Port  Clinton;  PAULDING,  Charloe;  PERRY, 
Somerset;  PICKAWAY,  Circleville ;  PIKE,  Piketon;  PREBLE,  Eaton;  PORTAGE, 
Ravenna;  PUTNAM,  Putnam  ;  HIGHLAND,  Mansfield  ;  Ross,  Chillicothe  ;  SANDUS- 
KY, Lower  Sandusky;  SCIOTO,  Portsmouth;  SENECA,  Tiffin;  SHELBY,  Sidney; 
STARK, Canton;  SUMMIT,  Akron;  TRUMBULL,  Warren;  TUSCARAWAS,  New-Phil- 
adelphia; UNION,  Marysville;  VAN  WERT,  VanWert;  WARREN,  Lebanon; 
WASHINGTON,  Marietta;  WAYNE,  Wooster;  WILLIAMS,  Bryan;  WOOD,  Perrysburg. 
8 


170  DEVISES  IN 

XX.     WILLS  OF  REAL  ESTATE  IN  OHIO. 

Intimately  connected  with  the  subject  of  conveyances  by 
deed,  are  devises  by  will.  In  Ohio,  every  person  of  full 
age,  and  of  sound  mind  and  memory,  except  femmes  covert, 
may  devise  real  estate.  As  both  affect,  or  may  affect,  the  title 
to  lands,  the  regulations  concerning  them  are  alike  important 
to  land  owners. 

Less  formality  is  required  in  the  execution  of  wills  which 
bequeath  personal  estate  only,  than  in  respect  to  those  which 
devise  real  estate,  yet  both  (with  the  exception  of  death-bed 
testaments  of  personal  estate,)  are  required  to  be  in  writing, 
and  signed  at  the  end  thereof  by  the  party  making  the  same, 
or  by  some  other  person  in  his  or  her  presence,  and  by  his  or 
her  direction. 

They  must  be  in  writing.  No  prescription  exists  con- 
cerning the  form,  nor  have  there  been  any  adjudications  which 
go  further  than  to  require  wills  to  be  legible,  intelligible,  and 
so  consistent  in  their  provisions  as  to  be  capable  of  construc- 
tion and  execution  by  executors.  They  may  be  written  on 
paper,  parchment,  or  any  similar  material. 

They  must  be  signed — signed  at  the  end  thereof  by  the 
party  making  the  same,  or  by  some  other  person  in  his  or  her 
presence,  and  by  his  or  her  direction.  "  Q,ui  facit  per  alium 
facit  per  se,"  is  a  maxim  which  holds  as  well  in  cases  of  wills 
as  deeds,  except  that  the  person  acting  as  amanuensis  for  the 
testator,  or  devisor,  must  act  in  his  presence.  The  signing 
may  be  done  by  making  a  mark,  but  it  should  be  by  writing 
the  name  at  length. 

They  must  be  attested.  The  statute  requires  all  written 
wills  to  "  be  attested  and  subscribed  in  presence  of  such  par- 
ty (that  is  the  testator,)  by  two  or  more  competent  witnesses 
who  saw  the  testator  subscribe  it  (them,)  or  heard  him  ac- 
knowledge the  same."  The  witnesses  are  not  required  to  be 
present  at  the  execution.  If  they  heard  the  testator  state  that 


OHIO.  171 

he  did  execute  the  will  in  question,  they  may  subscribe  the 
same,  and  their  subscription  will  be  held  to  be  a  sufficient 
attestation.  But  the  witnesses  must  be  competent.  They 
must  be  of  sufficient  age  to  understand,  and  of  legal  ability 
to  testify  on  the  probate  thereof.  They  should  be  persons 
of  discretion,  not  interested  in  any  legacy  or  bequest  con- 
tained in  the  will,  and  who,  from  infamy  of  character  or  oth- 
er cause,  are  not  incompetent  as  witnesses  in  a  court  of  jus- 
tice. 

The  testator  may  appoint  his  executors  by  will  or  codicil, 
or  he  may  omit  to  do  so  at  his  pleasure.  The  validity  of  a 
will  in  no  wise  depends  upon  their  appointment  therein,  as  the 
courts  having  jurisdiction  are  invested  with  power  to  ap- 
point administrators  to  execute  it. 

The  power  of  the  testator  to  devise  or  bequeath  his  prop- 
erty to  whomsoever  he  pleases,  is  qualified  only  by  the  right 
of  his  wife,  if  the  testator  be  a  married  man  and  leave  a  wife 
him  surviving,  to  elect  within  six  months  from  the  probate 
whether  she  will  claim  her  dower  in  his  lands,  or  abide  by 
the  will.  "  If  any  provision  be  made  for  a  widow  in  the  will 
of  her  husband,  she  shall  within  six  months  after  probate  of 
the  will,  make  her  election  whether  she  will  take  such  pro- 
vision or  be  endowed  of  his  lands  ;  but  she  shall  not  be  enti- 
tled to  both,  unless  it  plainly  appear  by  the  will  to  have  been 
the  intention  of  the  testator  that  she  should  have  such  pro- 
vision in  addition  to  her  dower."  [Stat.  Wills,  Sec.  45.]  The 
intention  should  be  declared  in  the  instrument,  if  such  were 
the  purpose  of  the  testator ;  yet  if  it  can  be  clearly  ascer- 
tained, without  any  express  declaration  to  that  effect,  the 
courts  will  accord  to  the  widow  both  the  legacy  and  dower. 
The  Statute  also  provides  how  that  election  shall  be  made. 
"  The  election  of  the  widow  to  take  under  the  will,  shall 
be  made  known  to  the  Court  of  Common  Pleas  of  the  proper 
county,  which  shall  be  entered  upon  the  minutes  of  the 
court,  and  if  the  widow  fail  to  make  such  election,  she  shall 


PROBATE  AND  RECORDING  OF  WILLS  IN 

retain  her  dower,  and  such  share  of  the  personal  estate  of 
her  husband  as  she  would  be  entitled  to  by  law  in  case  her 
husband  had  died  intestate.  If  she  elect  to  take  of  the  will 
she  shall  be  debarred  of  her  dower,  and  take  under  the  will 
alone."  [Id.,  Sec.  45.] 

Posthumous  children  cannot  be  cut  off  by  neglect  of  the 
parent,  where  he  or  she  have  no  children  born  at  the  time  of 
the  execution  of  a  will.  In  such  case,  if  no  provision  be 
made  in  the  will  for  the  after  born  child,  and  no  settlement 
have  been  made  for  it,  the  will  shall  be  deemed  revoked, 
unless  such  mention  of  the  child  shall  be  made  in  the  will 
as  to  show  an  intention  not  to  provide  for  it ;  and  no  other 
evidence  to  rebut  the  presumption  of  such  revocation  can  be 
received.  [Act  passed  March  23,  1840.] 

It  is  usual  for  the  testator  to  seal  his  will  after  its  execu- 
tion, in  an  envelop,  and  to  deposit  the  same  with  the  executor 
or  some  other  person ;  and  it  is  provided  that  if  wills  are 
sealed,  the  seal  shall  not  be  broken  by  the  executor  or  other 
person,  until  produced  in  court  for  probate. 

No  will  is  effectual  to  pass  real  or  personal  estate  until  ad- 
mitted to  probate.* 

*  Wills  fail  to  pass  real  property  unless  executed  according  to  the  laws  of  the 
State  where  the  property  devised  is  situated.  [9  Wheaton's  Reports,  566.] 

Whether  a  will  be  properly  executed  or  not,  must  be  decided  by  the  courts  in  ref- 
erence to  the  laws  in  force  at  the  time  of  its  execution,  without  reference  to  the 
testator's  death.  [5  Watts,  399.] 

Under  the  Statutes  of  1810,  a  femme  covert  was  authorized  to  devise  real  estate 
held  in  her  own  right.  [5  Ham.,  G5.] 

It  is  a  valid  republication  of  a  will  for  the  testator  to  declare  in  the  presence  of 
witnesses  that  the  paper  contains  his  last  will  and  testament,  provided  the  fact  be 
endorsed  on  the  will  and  subscribed  by  the  witnesses,  though  such  endorsement  be 
not  subscribed  by  the  testator.  [7  Ham.,  Part  2  :  39.] 

Where  a  testator  at  the  time  of  making  his  will  was  in  the  possession  of  lands  under 
a  verbal  asrreement,  for  the  purchase,  but  afterwards,  and  before  his  decease  obtained 
a  deed  of  the  same,  it  was  held  that  the  lands  so  deeded,  passed  to  the  devisee  under 
his  will.  [4  Ham.,  115.] 


OHIO.  173 

XXI.    THE  PROBATE  AND  RECORDING  OF  WILLS  IN  OHIO. 

Wills  are  required  to  be  proved  and  recorded.  In  Ohio, 
the  Courts  of  Common  Pleas  in  the  several  counties  have  the 
powers  of  a  Court  of  Probate.  They  have  power  to  com- 
pel the  production  of  wills  and  the  attendance  of  witnesses 
before  them.  Upon  application,  the  Court  of  Common  Pleas 
of  the  proper  county  is,  by  an  act  passed  May  23,  1840,  re- 
quired to  "  cause  the  witnesses  of  such  will,  and  such  other 
witnesses  as  any  person  interested  therein(thatisthe  will)  may 
desire,  to  come  before  such  court ;  and  said  witnesses  shall 
be  examined  in  open  court,  and  their  testimony  reduced  to 
writing  and  filed  :  provided,  that  in  all  cases  any  witnesses 
other  than  the  subscribing  witnesses  to  the  will,  are  intro- 
duced, the  court  may  order  their  testimony  to  be  taken  and 
reduced  to  writing  by  a  Master  Commissioner  of  the  court ; 
which  testimony  shall  be  filed  with  said  will."  [Id.,  Sec.  13.] 

"  If  it  shall  appear  to  the  court,  when  the  will  is  ofTered 
for  probate,  that  any  witness  is  gone  to  parts  unknown ;  or, 
if  the  witnesses  to  a  will  were  competent  at  the  time  of  at- 
testing its  execution,  and  afterwards  became  incompetent  by 
reason  of  interest,  infamy,  or  other  cause,  the  will  may  be 
admitted  to  probate  and  allowed  upon  such  proof  as  would 
be  satisfactory ;  and  in  like  manner  as  if  such  absent  or  in- 
competent witnesses  were  dead."  [Id.,  Sec.  14.]  Witnesses 
who  are  absent  from  the  State  may  be  examined  under  a 
commission  which  may  be  issued  by  the  court  to  one  or 
more  persons  of  the  State  or  place  where  the  absent  witness 
shall  reside,  and  the  testimony  thus  taken  is  as  valid  as  if 
taken  in  open  court.  [Id.,  Sec.  15.] 

"  If  it  shall  appear  that  such  will  was  duly  attested  and 
executed,  and  that  the  testator  at  the  time  of  executing  the 
same,  was  of  full  age,  and  of  sound  mind  and  memory,  and 
not  under  any  restraint,  the  court  shall  admit  the  will  to 
probate."  [Id.,  Sec.  16.] 


174        PROBATE  AND  RECORDING  OF  WILLS  IN 

It  has  been  decided  that  an  application  to  admit  a  will  to 
probate,  though  rejected,  extinguishes  no  right  and  binds  no 
body ;  but  when  admitted  to  probate,  it  binds  every  body. 
[Chapman's  Will,  6  Ohio  Reports,  148.  Hunter's  Will,  Id., 
499.] 

Appeals  lie  to  the  Supreme  Court  from  an  order  admitting 
a  will  to  probate,  but  if  the  Court  of  Common  Pleas  adjudge  the 
testimony  insufficient  and  refuse  the  probate,  no  appeal  lies. 

When  admitted,  wills  are  required  to  be  filed  and  recorded 
in  the  office  of  the  Clerk  of  the  Court,  together  with  the  testi- 
mony ;  and  an  exemplified  copy  with  the  order  of  probate, 
under  seal  of  the  court,  is  legal  evidence  of  such  probate. 

The  statute  renders  the  probate  so  far  conclusive,  that  if  no 
person  interested  shall,  within  two  years  after  probate  had,  ap- 
pear and  contest  the  validity  of  the  will,  the  probate  is  "forever 
binding,"  saving,  however,  to  infants,  married  women,  and 
persons  absent  from  the  State,  or  of  insane  mind,  or  in  captiv- 
ity, the  period  of  two  years  after  the  disability  is  removed  is 
allowed  for  appearance  and  contestation.  [Act  1840.  Sec.  21.] 

The  mode  provided  for  contesting  a  will,  is  by  bill  in  chan- 
cery, which  may  be  filed  within  said  two  years  by  any 
person  interested  in  the  will  or  estate  of  the  deceased ;  and 
upon  the  proper  issue  framed,  the  capacity  of  the  testator  in 
mind,  memory,  &c.,  may  be  tried  by  a  jury. 

Thus  far,  domestic  wills  have  alone  been  treated  of.  For- 
eign wills,  or  wills  executed,  proved,  and  allowed,  in  any 
other  of  the  United  States,  or  territory  thereof,  according  to 
the  laws  of  such  State  or  territory,  are  admitted  to  record  in 
Ohio,  in  the  manner  and  for  the  purposes  following :  "A  copy 
of  the  will  and  probate  thereof,  duly  authenticated,  shall  be 
produced  by  the  executor,  or  by  any  person  interested  therein, 
to  the  Court  of  Common  Pleas  of  the  county  in  which  there 
is  any  estate  upon  which  the  will  may  operate  ;  whereupon 
the  court  shall  continue  the  motion  to  the  next  term,  and  no- 
tice of  the  application  shall  be  given  to  all  persons  interested, 


OHIO.  175 

in  some  public  newspaper  printed  or  in  general  circulation  in 
the  county  where  such  motion  is  made,  at  least  three  weeks 
successively ;  the  first  publication  to  be  forty  days,  at  least, 
before  the  said  time  for  the  final  hearing  of  said  motion.  If, 
on  hearing,  it  shall  appear  to  the  court  that  the  instrument 
ought  to  be  allowed  in  this  Slate,  the  court  shall  order  the 
copy  to  be  filed  and  recorded  ;  and  the  will  and  the  probate 
and  record  thereof  shall  then  have  the  same  force  and  effect, 
as  if  the  will  had  been  originally  proved  and  allowed  in  the 
same  court,  in  the  usual  manner ;  provided,  however,  that 
nothing  herein  contained  shall  be  construed  to  give  any  ope- 
ration or  effect  to  the  will  of  an  alien,  different  from  what  it 
would  have  had  if  originally  proved  and  allowed  in  this  State. 
After  allowing  and  admitting  to  record  a  will,  so  executed, 
the  court  may  grant  letters  testamentary  thereon,  or  letters 
of  administration  with  the  will  annexed,  and  shall  proceed 
in  the  settlement  of  the  estate  that  may  be  found  in  this  State ; 
and  the  executor  taking  out  letters,  or  the  administrator  with 
the  will  annexed,  shall  have  the  same  power  to  sell  and 
convey  the  real  and  personal  estate  by  virtue  of  the  will,  or 
the  law,  as  other  executors  or  administrators  with  the  will 
annexed  shall  or  may  have  by  law."  [Id.,  Sec.  29,  30,  31, 
32.] 

There  is  another  provision  in  this  act  which  is  worthy  of 
especial  notice.  It  is  that  "no  lands,  tenements,  or  heredita- 
ments shall  pass  to  any  devisee  in  a  will,  who  shall  know 
the  existence  thereof  and  have  the  samejn  his  power  to  con- 
trol for  the  term  of  three  years  ;  unless,  within  that  time,  he 
shall  cause  the  same  to  be  offered  for  or  admit  ted  to  probate." 

The  evils  growing  out  of  a  neglect  to  produce  a  will  within 
three  years  are  manifold  ;  hence  the  above  enactment,  to- 
gether with  another,  which  declares  that  in  cases  of  such 
neglect,  "the  estate  devised  to  such  devisee  shall  descend 
to  the  heirs  of  the  testator." 


STATUTE  OF  DESCENTS  JN 


XXII.     THE    TITLE    TO    REAL    ESTATE    BY    DESCENT. 

Succession  to  the  estate  of  an  ancestor  decoding  intestate, 
is  now  the  custom  of  all  civilized  nations.  Hereditary  de- 
scent, if  not  the  design  of  Providence,  is  clearly  a  dictate  of 
humanity.  It  induces  both  paternal  care  and  filial  loyalty 
and  regard. 

The  Jews  had  a  rule  upon  the  subject  that  was  general 
throughout  their  nation.  The  example  was  imitated  by  the 
Athenians,  who  expounded  and  liberalized  the  doctrine.  In- 
sinuating itself  among  the  continental  nations,  it  finally  be- 
came a  part  of  the  common  law,  which  afterwards  found  its 
way  across  the  Atlantic,  where  it  intermingled  with  the 
economical  regulations  of  the  several  colonies.  It  is  not 
uniform,  however,  in  this  country.  The  people  of  the  United 
States  have  no  general  law  of  descents.  Each  State  has 
adopted  for  herself  such  a  rule  upon  the  subject  as  her 
Legislature  has  deemed  politic  and  wise.  The  rule  adopted 
in  this  State,  was  indicated  in  the  ordinance  of  1787  for  the 
government  of  the  territory  northwest  of  the  river  Ohio.  As 
enacted  by  the  Legislature,  it  is  substantially  the  same  as 
that  in  the  State  of  Indiana.  [See  Indiana.] 

XXIII.     LAND    TAXES    IN    OHIO. 

All  real  property  within  this  State,  except  churches  and 
school  houses,  and  the  grounds  not  exceeding  twenty  acres 
upon  which  they  are  situate,  cemeteries,  grave  yards,  build- 
ings belonging  to  scientific,  literary  or  benevolent  societies, 
together  with  the  land  occupied  by  them,  land  belonging  to 
the  State  or  United  States,  or  sold  by  the  latter  within  five 
years,  court  houses  and  other  county  buildings,  with  not 
exceeding  ten  acres  of  land  upon  which  they  are  situate, 
market  houses,  public  squares,  township  houses,  and  fire 
engine  houses,  is  subject  to  taxation. 

In  the  assessments  preparatory  to  the  levy  of  taxes,  the 


OHIO.  177 

statute  requires  "each  separate  parcel  of  real  property  to  be 
valued  at  its  true  value  in  money,  including  the  value  of 
crops  growing  thereon ;  but  the  price  for  which  such  real 
estate  would  sell  at  auction,  or  at  a  forced  sale,  shall  not  be 
taken  as  the  criterion  of  such  true  value."  [Act  of  March  2, 
1846,  Sec.  12.] 

On  the  third  Monday  of  March,  eighteen  hundred  and 
forty-six,  (and  once  in  six  years  thereafter)  the  said  act  re- 
quired the  County  Commissioners  of  each  county  to  meet  at 
the  office  of  the  Cctunty  Auditor,  and  when  so  met,  to  divide 
their  county  into  at  least  two  and  not  more  than  four  dis- 
tricts, except  the  county  of  Hamilton,  which  may  be  divided 
into  not  less  than  six,  nor  more  than  twelve,  and  to  appoint 
some  well  qualified  citizen  of  such  county  as  Assessor  for 
each  district.  [Id.,  Sec.  20.] 

The  Assessors  respectively,  after  having  first  given  a  bond 
in  the  penalty  of  two  thousand  dollars,  and  taken  an  oath, 
for  the  faithful  performance  of  their  duties,  are  required  to 
make  out  from  the  maps  and  descriptions  furnished  them 
by  the  County  Auditor,  and  from  such  other  sources  of  infor- 
mation as  shall  be  in  their  power,  a  correct  and  pertinent  de- 
scription of  each  parcel  of  real  property  in  their  district ;  and 
when  thereunto  necessary,  they  may  require  the  owner  or 
occupant  of  any  parcel  of  land  to  furnish  them  any  title  pa- 
pers or  other  documents  relating  to  the  description,  in  his 
possession  or  under  his  control,  and  in  case  of  refusal,  they 
may  employ  a  surveyor  to  survey  the  same  and  make  a  de- 
scription therefrom  at  the  expense  of  the  owner,  to  be  charged 
in  the  tax;  and  having  determinedthe  value  thereof  accord- 
ing to  the  best  of  their  judgment,  they  shall  each  return  the 
list  for  their  respective  districts  to  the  County  Auditor,  under 
oath,  on  or  before  the  tenth  day  of  July  following.  Inter- 
vening the  six  years,  Township  Assessors,  whilst  annually 
taking  an  account  of  personal  property  in  each  town  or 
ward,  are  required  to  enter  upon  their  lists  all  real  property  in 


178 


LAND  TAXES  IN 


their  township  or  ward  that  shall  have  become  subject  to 
taxation  since  the  last  listing,  with  the  value  thereof,  and  all 
new  buildings  exceeding  in  value  one  hundred  dollars,  and 
to  return  the  same  to  the  County  Auditor,  who  enters 
all  returns  in  books  to  be  provided  for  that  purpose.  On 
the  first  Monday  of  August  next,  after  the  District  Assess- 
ors shall  have  made  their  returns,  the  County  Commissioners, 
District  Assessors,  County  Surveyor  and  County  Auditor,  or 
a  majority  of  them,  are  required  to  convene  at  the  county 
seat  and  organize  themselves  as  a  "  County  Board  of  Equal- 
ization." The  County  Auditor  having  laid  before  them  the 
returns  made  to  him  by  the  Assessors,  they  are  required  to 
proceed  to  equalize  such  valuation,  so  that  each  parcel  shall 
be  entered  on  the  tax  list  at  its  true  value.  In  doing  so,  they 
are  required  to  raise  the  valuation  of  such  parcels  as  have 
been  returned  below,  and  to  reduce  the  valuation  of  such  as 
have  been  returned  above,  but  seeing  to  it  that  they  do  not 
reduce  the  aggregate  below  the  valuation  of  the  county  as 
fixed  by  the  State  Board  of  Equalization.  The  State  Board 
consists  of  one  person  from  each  Senatorial  District,  appoint- 
ed by  joint  ballot  of  the  Senate  and  House  of  Representa- 
tives, and  meets  at  Columbus  on  the  fourth  Monday  of  Octo- 
ber. The  result  of  their  labors  in  the  equalization  of  real 
property  among  the  counties,  is  transmitted  by  the  Auditor 
of  the  State  to  the  several  County  Auditors;  and  on  or  be- 
fore the  fifteenth  day  of  July  annually,  the  State  Auditor  de- 
termines the  aggregate  per  centum  to  be  levied  on  the  whole 
taxable  property  of  the  State  for  defraying  the  ordinary  ex- 
penses of  the  government  and  its  public  institutions,  for  the 
support  of  schools,  and  to  pay  such  interest  on  the  public 
debt  as  the  revenues  from  the  public  works  shall  not  furnish, 
and  transmits  the  same  to  County  Auditors,  who  after  ascer- 
taining the  amount  in  addition  to  be  raised  for  local  purpo- 
ses authorized  by  law,  are  required  to  proceed  forthwith  "  to 
determine  the  sum  or  sums  to  be  levied  upon  each  parcel  of 


OHIO.  179 

real  property  (and  upon  the  amount  of  personal  property 
moneys  and  credits)  listed  in  their  county,  in  the  name  of  each 
person,  company  or  corporation,  which  shall  be  assessed  and 
set  down  in  three  or  more  columns,  in  such  manner  and  form 
as  the  Auditor  of  the  State  shall  prescribe :  Provided,  that 
all  taxes  levied  for  State  purposes,  and  all  taxes  levied  for 
county  purposes,  shall  each  be  set  down  in  a  separate  col- 
umn ;  and  provided  also,  that  each  County  Auditor,  in  de- 
termining the  per  centum  to  be  levied  for  any  purpose  or  pur- 
poses, on  any  property  entered  in  his  books  for  taxation, 
(when  the  amount  so  levied  is  to  beset  down  in  one  column,) 
shall  assume  such  per  centum  not  containing  any  fractions 
of  less  than  one  fifth  of  a  mill  as  will  produce  a  gross  sum 
nearest  the  amount  which  he  is  required  to  levy  for  such  pur- 
poses, and  in  extending  the  sum  levied  on  any  parcel  or 
amount  of  property,  money,  or  credits,  he  shall  carry  out  no 
fraction  of  a  cent,  but  in  any  case  where  such  fraction  is 
greater  than  half  a  cent  it  shall  be  carried  out  one  cent." 
[Act  of  March  2,  1846,  Sec.  52.]  "For  every  purpose  for 
which  he  is  required  to  assess  taxes,  the  County  Auditor 
shall  assess  an  equal  per  centum  of  tax  on  all  real  and  per- 
sonal property  agreeably  to  the  value  thereof."  [Id.,  Sec.  24.] 

The  amount  of  money  to  be  raised  in  the  several  counties 
respectively  for  roads,  bridges,  public  buildings,  the  support 
of  the  poor,  and  other  county  purposes,  is  determined  by  the 
County  Commissioners,  and  by  them  reported  to  the  County 
Auditor ;  and  the  Trustees  of  Towns,  in  like  manner,  as- 
certain the  amount  to  be  raised  for  town  purposes,  and  report 
the  same  to  him.  [Id.,  Sec.  55  and  56.]  The  taxes  being 
levied,  as  aforesaid,  are  receivable  by  the  Treasurer  at  the 
county  seat  in  each  county  from  the  fifteenth  day  of  Septem- 
ber, until  the  first  Monday  in  January  in  each  year,  that  of- 
ficer being  furnished  a  duplicate  of  the  levy. 

The  Revised  Statutes  provide,  "that  the  County  Audi- 
tor shall  attend  at  his  office  on  the  first  Monday  in  January, 


LAND  TAXES  IN 

annually,  to  make  settlement  with  the  Treasurer  of  his 
county,  and  ascertain  the  amount  of  taxes  with  which  such 
Treasurer  is  to  stand  charged  ;  and  the  Auditor  shall  then 
take  from  the  duplicate  previously  put  into  the  hands  of  the 
Treasurer  for  collection,  a  list  of  all  such  taxes  as  such 
Treasurer  shall  have  been  unable  to  collect  thereon,  describ- 
ing the  property  on  which  such  delinquent  taxes  are  charged, 
as  the  same  is  described  on  such  duplicate,  and  shall  note 
thereon  in  a  marginal  column  the  several  reasons  assigned  by 
such  Treasurer,  why  such  taxes  could  not  be  collected,  and 
such  list  shall  be  signed  by  the  Treasurer,  who  shall  testify 
to  the  correctness  thereof  under  oath  or  affirmation,  to  be  ad- 
ministered by  the  Auditor.  [Id.,  Sec.  27.]  Lands  delinquent 
for  taxes  are  then  returned  to  the  Auditor  of  the  State,  at 
Columbus,  where  the  taxes  may  be  paid  until  the  first  day  of 
March  without  penalty,  from  the  first  day  of  March  to  the  first 
day  of  May  with  a  penalty  of  ten  per  cent,  and  after  that  with  a 
penalty  of  twenty-five  per  cent.  Six  percent  interest  is  added, 
in  making  up  the  duplicate  for  the  next  year. 

If  the  same  land  is  again  returned  as  delinquent,  it  is  the 
duty  of  the  Auditors  of  the  several  counties  to  "  cause  the  list  of 
lands  delinquent  in  the  respective  counties  to  be  published  at 
least  four  weeks,  between  the  third  Monday  of  November  and 
the  first  Monday  in  January,  in  some  newspaper  printed  in 
the  respective  counties,  if  any  be  printed  therein,  and  if  none 
be  printed  therein,  then  in  some  newspaper  having  general 
circulation  in  such  county,  to  which  list  there  shall  be  at- 
tached a  notice  that  the  whole  of  the  several  tracts,  or  town 
lots  in  said  list  contained,  or  so  much  thereof  as  will  be  ne- 
cessary to  pay  the  taxes,  interest  and  penalty  charged  there- 
on, will  be  sold  at  the  court  house  in  such  county,  on  the 
second  Monday  in  January  next  thereafter,  by  the  County 
Treasurer,  unless  such  taxes,  interest  and  penalty  be  paid 
before  that  time."  If  payment  be  not  made,  the  sale  is  re- 
quired to  be  made  on  that  day,  at  and  after  ten  o'clock,  and 


OHIO.  181 

the  Auditor  is  Clerk  at  the  sale,  and  delivers  a  certificate 
thereof  to  purchasers,  who  are  required  to  pay  immediately, 
the  taxes  in  arrear,  the  penalty  and  interest. 

When  land  thus  returned  for  delinquent  taxes  is  offered  for 
sale,  but  not  sold  for  want  of  bidders,  it  is  forfeited  to  the  State, 
and  "  thenceforth  all  the  right,  title,  claim  and  interest  of  the 
former  owner  or  owners  thereof,  shall  be  considered  as  trans- 
ferred to  and  vested  in  said  State,  to  be  disposed  of  as  the 
Legislature  may  by  law  direct."  By  an  act  passed  March 
12,  1845,  however,  the  Treasurer  was  authorized  to  adjourn 
the  sale  from  day  to  day,  until  he  shall  have  offered  for  sale, 
or  disposed  of,  each  and  every  tract  of  land  specified  in  the 
notice ;  and  it  was  further  provided,  that  if  any  tract  or  par- 
cel of  land  should  not  soil  at  public  sale  for  an  amount  suffi- 
cient to  pay  the  taxes,  interest  and  penalty,  which  stands 
against  such  tract,  the  Auditor  should  return  the  same  as  un- 
sold, to  be  retained  upon  the  list  of  forfeited  lands,  to  be  offer- 
ed for  sale  the  next  succeeding  year,  as  other  forfeited  lands. 

The  sale  is  subject,  however,  to  the  redemption,  which 
forms  the  following  topic  of  inquiry.  • 

XXIV.  LAND  TAX  FORFEITURES  AND  REDEMPTIONS  IN 
OHIO. 

By  an  act  of  the  General  Assembly,  passed  March  3, 
1831,  it  is  provided  that  all  lands  sold  for  taxes  may  be  re- 
deemed at  any  time  within  two  years  from  the  sale  thereof ; 
and  that  all  lands  belonging  to  minors,  femmes  covert,  in- 
sane persons  and  persons  in  captivity,  sold  for  taxes,  may  be 
redeemed  at  any  time  within  two  years  from  and  after  the  ex- 
piration of  such  disability.  [Id.,  Sec.  1.] 

Applications  for  the  redemption  of  lands  are  required  to 
be  made  to  the  Court  of  Common  Pleas  of  the  county  in 
which  the  lands  are  situated  ;  or,  if  they  lie  in  two  counties, 
then  of  the  county  where  they  were  sold ;  but  notice 
thereof,  published  six  weeks  in  a  newspaper  printed  in, 


182  FORFEITURES  AND  REDEMPTIONS  IN 

or  circulating  in,  the  county,  must  be  given  by  the  applicant, 
describing  the  land,  the  original  owner  and  the  purchaser, 
and  specifying  when  the  application  will  be  made.  The 
applicant  is  als^p  required,  at  the  time  of  publishing  the 
notice,  to  deposit  with  the  Clerk  of  the  court  to  which 
the  application  is  to  be  made  an  amount  of  money  equal 
to  that  for  which  the  land  was  sold,  and  the  taxes  sub- 
sequently paid  thereon  by  the  purchaser,  or  those  claiming 
under  him,  together  with  interest  and  fifty  per  centum  on 
the  whole  amount  paid  by  such  person  including  costs,  or  at 
his  discretion  he  or  she  may  tender  to  the  purchaser  or  pur- 
chasers, or  his  or  their  agent  or  attorney,  the  amount  of 
taxes,  interest  and  penalty  due  thereon,  instead  of  deposit- 
ing the  same  with  the  Clerk  of  the  court ;  and  if  the  said 
purchaser  or  purchasers,  his  or  their  agent  or  attorney,  will 
not  accept  the  same,  the  owner  or  owners,  his  or  their  agent 
or  attorney,  may  make  the  application  to  the  court,  and  the 
costs  will  abide  the  event.  [Id.,  Sec.  2,  3,  4.] 

"If  the  court  to  which  such  application  shall  be  made, 
shall  be  satisfied  that  due  notice  nas  been  given,  as  required 
in  the  third  section  of  this  act,  or  that  the  deposit  (or  tender) 
has  been  made,  they  shall  proceed  to  examine  the  testimony 
of  such  applicant  relative  to  his  right  of  redemption j  and  the 
counter  testimony  of  the  adverse  party,  if  any  be  offered ; 
and  if  on  such  examination  the  court  shall  be  satisfied  that 
the  applicant  is  entitled  to  redeem  such  land  or  town  lot,  they 
shall  make  an  order  of  redemption,  which  shall  vest  in  the 
applicant  all  the  title  which  passed  by  such  sale,  and  shall 
award  restitution  of  the  premises,  and  direct  that  the  appli- 
cant pay  the  costs  of  the  application,  (in  case  he  shall  not 
have  made  a  tender  ;  if  he  shall  have  made  a  good  tender,  the 
costs  abide  the  event)  and  the  court  shall  at  the  same  time 
order  the  money  so  deposited  as  aforesaid  to  be  paid  to  the 
adverse  party.  [Id.,  Sec.  6.]  But  it  is  also  provided  "  that  in 
case  any  lasting  and  valuable  improvements  shall  have  been 


OHIO.  183 

made  by  the  purchaser  at  a  sale  for  taxes,  or  by  any  person 
claiming  under  him,  on  any  land  or  town  lot,  for  which  an 
order  of  redemption  shall  be  made  as  aforesaid,  the  premises 
shall  not  be  restored  to  the  person  obtaining:  such  order,  un- 
til he  shall  have  paid  or  tendered  to  the  adverse  party,  the 
value  of  such  improvements ;  and  if  the  parties  cannot 
agree  on  the  value  of  such  improvements,  the  same  proceed- 
ings .shall  be  had  in  relation  thereto,  as  shall  be  prescribed 
in  any  law  existing  at  the  time  of  such  proceedings,  for  the 
relief  of  occupying  claimants  of  land  ;  provided  that  no  pur- 
chaser of  any  land  or  town  lot  sold  for  taxes,  nor  any  person 
claiming  under  him,  shall  be  entitled  to  any  compensation 
for  any  improvements  which  he  shall  make  on  such  land  or 
town  lot,  within  two  years  after  the  sale  thereof."  [Id.,  Sec.  7.] 
The  time  allowed  for  redemption  of  land  sold  on  a  mort- 
gage foreclosure,  is  one  year.  A  widow  forfeits  her  dower 
in  lands  sold  for  taxes,  if  she  do  not  redeem  in  one  year 
from  the  day  of  sale. 

XXIV.    REAL  ESTATE  EXEMPTIONS    IN    OHIO. 

By  an  act  entitled  "  an  act  to  amend  an  act  entitled  an  act 
to  regulate  judgments  and  executions  at  law,"  passed  March 
9,  1840,  the  several  statutes  relating  to  the  property  of  house- 
holders exempted  from  execution  underwent  a  thorough  re- 
vision.  The  revised  act  increased  the  amount  of  exempted 
personal  property,  but  reserved  to  the  debtor,  exempt  from 
sale  upon  decrees  or  executions,  no  real  estate  whatever. 

On  the  28th  of  February,  1846,  however,  an  act  was 
passed  for  the  protection  of  the  rights  of  married  women,  in 
which  it  is  provided  "  that  the  interest  of  any  man  in  the 
real  estate  of  his  wife,  belonging  to  her  at  the  time  of  their 
intermarriage,  or  which  may  come  to  her  by  devise,  gift,  or 
inheritance  daring  coverture,  or  which  may  have  been  pur- 
chased with  her  sole  and  separate  money,  or  other  property, 
and  daring  her  coverture,  shall  have  been  deeded  to  her,  or 


184  REAL  ESTATE  EXEMPTIONS  IN 

to  any  trustee  in  trust  for  her,  shall  not  be  liable  to  be  taken 
by  any  process  of  law  or  chancery,  for  the  payment  of  his 
debts  during  the  life  of  the  wife,  or  the  life  or  lives  of  the 
heir  or  heirs  of  her  body."  [Id.,  Sec.  1.] 

"  All  conveyances  and  incumbrances  of  the  husband's  in- 
terest in  the  real  estate  of  the  wife,  in  the  first  section  men- 
tioned, shall  be  void  and  of  no  effect  during  the  life  of  the 
wife,  and  during  the  life  or  lives  of  the  heir  or  heirs  of  her 
body,  unless  an  instrument  of  such  conveyance  or  incum- 
brance  shall  have  been  executed,  attested  and  acknowledged, 
according  to  the  laws  of  this  State  for  the  conveyance  or  in- 
cumbrance  of  the  estate  of  the  wife  in  lands,  tenements  and 
hereditaments  situate  within  this  State."*  [Id.,  Sec.  2.] 

*  By  an  act,  passed  March  9,  1840,  it  is  provided  "  that  each  person  who  has  a 
family,  shall  hold  the  following  property  exempt  from  execution  01  sale,  for  any 
debt,  damages,  fine  or  amercement,  to  wit ' 

First,  The  wearing  apparel  of  such  family ;  the  beds,  bedsteads  and  bedding 
necessary  for  the  use  of  such  family  ;  one  stove  and  pipe  used  either  for  cooking 
or  for  warming  the  dwelling  house  ;  an  amount  of  fuel  sufficient  for  the  period  of 
sixty  days,  actually  provided  and  designed  for  the  use  of  such  family. 

Secondly,  One  cow,  or  if  the  debtor  own  no  cow,  household  furniture,  which 
is  to  be  selected  by  the  debtor,  and  not  exceeding  fifteen  dollars  in  value ;  two 
swine,  or  pork  therefrom,  or  if  the  debtor  own  no  swine,  household  or  kitchen 
furniture,  to  be  selected  by  the  debtor,  not  exceeding  six  dollars  in  value ;  six 
slieep,  the  wool  shorn  therefrom,  and  the  cloth  or  other  articles  manufactured 
therefrom,  or  in  lieu  of  such  sheep,  household  furniture,  to  be  selected  by  the  debtor, 
not  exceeding  ten  dollars  in  value;  and  sufficient  food  for  such_animals,  when  owned 
by  the  debtor,  for  the  period  of  sixty  days. 

Thirdly,  The  bibles,  hymn  books,  psalm  books,  testaments  and  school  books, 
used  in  the  family,  and  all  family  pictures. 

Fourthly,  Any  amount  of  provisions  actually  prepared  and  designed  for  the  sus- 
tenance of  such  family,  not  exceeding  forty  dollars  in  value,  to  be  selected  by  the 
debtor ;  and  such  other  articles  of  household  and  kitchen  furniture  or  either,  neces- 
sary for  the  debtor  and  his  family,  and  to  be  selected  by  the  debtor,  not  exceeding 
thirty  dollars  in  value. 

Fifthly,  The  tools  and  implements  of  the  debtor,  necessary  for  carrying  on  his 
trade  or  business,  whether  mechanical  or  agricultural,  to  be  selected  by  him,  not 
exceeding  fifty  dollars  in  value.  [Id.,  Sec.  1.] 

The  amount  of  beds,  bedsteads  and  bedding  necessai-y  for  the  use  of  such  family ; 
the  amount  of  fuel  necessary  for  the  period  of  sixty  days  actually  provided  and  de- 
signed for  the  use  of  such  family  ;  the  amount  of  food  for  the  use  of  the  animals  ex- 
empted from  execution,  for  the  period  of  sixty  days,  shall  be  determined  by  two 
disinterested  householders  of  the  county,  to  be  selected  by  the  officer  holding  the 


OHIO.  185 

XXVI.     LIMITATION  OF  REAL  ACTIONS  IX  OHIO. 

By  an  act  passed  February  18,  1831,  all  actions  of  eject- 
ment, or  other  actions  for  the  recovery  of  the  title  or  posses- 
sion of  lands,  tenements  or  hereditaments,  are  required  to  be 
brought  within  twenty-one  years  after  the  cause  of  action 
shall  have  accrued,  and  riot  after.  [Id.,  Sec.  1.]  If,  however, 
any  person  entitled  to  have  or  maintain  any  such  action  be, 
at  the  time  his  right  or  title  first  descended  or  accrued,  with- 
in the  age  of  twenty-one  years,  femme  covert,  insane  or  im- 
prisoned, every  such  person  may,  after  the  expiration  of 
twenty-one  years  from  the  time  his  or  her  right  or  title  first 
'descended  or  accrued,  bring  such  action  within  ten  years  af- 
ter such  disability  removed,  and  at  no  time  thereafter.  [Id., 
Sec.  2.]  But  if  in  any  action  commenced  within  the  time 
above  limited,  judgment  shall  be  arrested  and  reversed,  or 
the  suit  abate,  or  the  plaintiff  become  non-suited,  and  the 
time  limited  as  aforesaid  shall  expire,  the  plaintiff  may  com- 
mence a  new  action  within  one  year  after  such  arrest  and 
reversal  of  judgment,  non-suit,  or  abatement  of  action,  as 
aforesaid,  and  not  after ward.t  [Id.,  Sec.  6.] 

execution.  And  the  value  of  the  provision*,  household  and  kitchen  furniture,  and 
the  tooh  and  implements  of  the  debtor,  neressaiy  for  carrying  on  his  trade  or  busi- 

\  tlii>  art  exempted  from  executions,  hall  be  estimated  and  appraised  by  said 

olders.      [Id.,  Sec.  2.] 

:  Since  the  passage  of  the  foregoing  an  net  explanatory  of  the  fifth  clause  has  been 
passed,  in  and  liy  which  it  is  provided  that  the  same  "  shall  be  so  construed  as  to 
authorize  the  execution  debtor,  if  he  be  engaged  at  the  time  in  the  business  of  agri- 
culture, to  select  as  tools  and  implements  necessary  for  carrying  on  his  trade  or 
business,  one  work  horse,  or  mare,  or  one  yoke  o?  work  oxen,  with  the  necessary 
gearing  fur  the  same  ;  and  if  said  judgment  debtor  be  actually  engaged  at  the  time 
in  the  practice  of  medicine  and  surgery,  he  shall  be  entitled  to  select  as  above  one 
horse  or  mare,  and  one  saddle  and  bridle;  also  medicines,  instruments  and  books 
pertaining  to  his  profession,  not  exceeding  in  value  the  sum  of  fifty  dollars."  [Act 
of  March  1,  1344.] 

t  The  limitation  upon  actions  upon  the  case,  covenant,  debt,  founded  on  specialty 
on  contract  in  writing,  is  fifteen  years  after  the  cause  of  action  accrued ;  upon  ac- 
tions upon  contracts  not  in  writing,  and  upon  the  case  for  consequential  damages, 
ix  years ;  upon  trespasses,  detinue,  trover  and  replevin,  four  years ;  upon  libels,  slan- 
der, malicious  prosecutions,  and  false  imprisonment,  one  year.  [OhioxStat.  of  1331.] 

8* 


186  THE  INTEREST  OF  MONEY  IN  OHIO. 

XXVII.     THE    INTEREST    OF    MONEY    IN    OHIO. 

The  Statutes  provide  that  all  creditors  shall  be  entitled  to 
receive  interest  on  all  money  after  the  same  shall  become  due, 
either  on  bond,  bill,  promisory  note,  or  other  instrument  of 
writing,  or  contract  for  money  or  property ;  on  all  balances 
due  on  settlement  between  parties  thereto,  or  money  withheld 
by  unreasonable  and  vexatious  delay  of  payment ;  and  on 
all  judgments  obtained  from  the  date  thereof,  and  on  all  de- 
crees obtained  in  any  Court  of  Chancery,  for  the  payment  of 
money,  from  the  day  specified  in  the  said  decree,  or  if  no  day 
be  specified,  then  from  the  day  of  the  entering  thereof,  until 
such  debt,  money,  or  property  is  paid,  at  the  rate  of  six  per 
centum  per  annum,  and  no  more.*  [Act  Jan.  12,  1824.] 

XXVIII.     REGULATIONS  CONCERNING  USURY  IN  OHIO. 

No  statute  for  the  punishment  of  usury,  as  in  New- York, 
has  been  enacted  in  Ohio.  That  which  relates  to  the  sub- 
ject of  interest,  fixes  the  rate  at  six  per  cent,  and  "no  more." 
No  greater  sum  than  at  and  after  the  rate  of  six  per  centum 
per  annum  is  allowed.  In  the  case  of  the  Lafayette  Benev- 
olent Society  vs.  Lewis,  (Ohio  Reports)  it  was  judicially  deter- 
mined, that  a  contract  to  pay  more  than  six  per  cent  cannot, 
but  that  legal  interest  on  a  contract  to  pay  a  certain  princi- 
pal and  a  rate  of  interest  exceeding  six  per  cent  can,  be 
enforced.  The  contract  is  valid  for  the  principal  and  law- 
ful interest,  but  void  for  the  excess. 

*  Under  the  Statutes  of  Ohio  concerning  the  interest  of  money,  only  six  per  rent 
per  annum,  for  the  loan  or  forbearance  of  money,  can  be  recovered,  even  though  the 
contract  contain  stipulations  for  the  payment  of  a  greater  rate.  [7  Ham.,  80.] 

Interest  upon  interest  is  recoverable  where  instalments  arc  suffered  to  fall  in  ar- 
rear.  In  such  case,  the  holder  of  the  obligation  is  entitled  to  his  interest  upon  the 
instalment,  and  interest  due,  from  the  day  when  the  same  became  payable.  [4 
Ham.,  373.] 

In  estimating  the  damages  under  a  covenant  of  warranty,  interest  is  not  recovera- 
ble when  the  premises  have  been  occupied  by  the  warrantee.  [5  Ham.,  154.] 


INDIANA.  187 


CHAPTER  III, 


THE  STATE  OF  INDIANA. 

Source  of  Title  to  Lands  in  Indiam.  Settlement  thereof  by  the  French.  Capitu- 
lation to  the  English.  The  Quebec  Act.  Relinquishment  of  the  Country  by 
Great  Britain.  The  Cessions  of  Massachusetts,  Connecticut,  New- York,  and 
Virginia.  Erection  of  the  Territory  Nortlnve-t  of  the  river  Ohio.  Ordinance 
of  1737.  Acts  of  Cou^re-s  rnnc'Tiiiiiir  the  early  settlers.  The  Erection  and 
Division  of  Indiana  Territory.  Admission  into  t'.ie  I  nion  of  Indiana  as  a  State. 
Her  Constitution.  Land  Titles  ireneially.  The  Execution,  Attestation,  Proof, 
Acknowledgment  and  Recording  of  Conveyances.  The  Execution,  Attestation, 
Probate  and  Recording  of  Wills  of  Real  K~t->te.  The  Statute  of  Descents. 
The  Levy  and  Collection  of  Land  Taxi--.  Tax  Sales.  Forfeitures  and  Redemp- 
tions. Limitations  and  Exemptions.  Interest  of  .Money  and  Usury. 

I.    SOURCE  OF  TITLE   TO  LANDS  IN  INDIANA SETTLEMENT 

THEREOF  BY  THE  FRENCH CAPITULATION  TO  THE  ENG- 
LISH  THE  QUEBEC  ACT,  ETC. 

As  the  State  of  Indiana  was  erected  from  a  portion  of  the 
territory  of  the  United  States  lying  northwest  of  the  river 
Ohio,  the  preceding  chapter  as  correctly  indicates  the  source, 
and  history  of  land  titles  in  this,  as  in  the  State  of  Ohio. 
For  an  account,  therefore,  of  the  native  proprietors ;  of  the 
exploration  and  settlement  of  the  territory  by  the  French ; 
the  acquirement  arid  relinquishment  thereof  by  Great  Britain; 
the  Cessions  of  Massachusetts,  Connecticut,  New- York  and 
Virginia  ;  the  treaties  extinguishing  the  Indian  right  of 
occupancy  ;  and  the  ordinance  of  Congress  for  the  govern- 


188  SOURCE  OF  TITLE  TO  LANDS  IN 

ment  of  the  territory,  the  reader  will  see  Ante  127  to  157 
inclusive.* 

Soon  after  the  adoption  of  the  Federal  Constitution,  the 
subject  of  the  claims  of  the  early  settlers  at  and  about  Vin- 
cennes,  was  brought  to  the  notice  of  Congress,  and  resulted 
in  the  passage  of  an  act  granting  four  hundred  acres  of  land 
to  each  head  of  a  family,  who  resided  there  in  1783,  and  the 
same  to  those  or  the  heirs  of  those  who  had  formerly  resided 
there,  but  who  had  removed  therefrom  upon  the  condition 
of  their  return  and  occupancy  thereof  within  the  period  of 
five  years.  The  act  also  confirmed  to  settlers  the  titles  de- 
rived by  them  of  commandants  of  forts  to  the  extent  of  four 
hundred  acres  to  each  person :  appropriated  to  the  inhabitants 
of  Vincennes  five  thousand  four  hundred  acres  of  land,  at. 
that  place  ;  and  authorized  the  Governor  to  grant  one  hun- 
dred acres  to  persons  enrolled  in  the  militia  at  Vincennes  the 
preceding  year.  ![U.  S.  Statutes,  Yol.  1,  221.]  This  measure 
aroused  the  slumbering  energies  of  the  pioneers,  and  inves- 
ted the  settlements  with  an  ambition  for  progress.  Their 
land  titles  had  been  for  a  long  period  in  a  condition  of  un- 
certainty and  painful  solicitude.  This  act  alleviated  their 
anxiety,  removed  their  doubts,  and  evinced  a  generosity  on 
the  part  of  the  government  that  gave  earnest  of  a  brighter 
future. 

In  the  course  of  events,  all  that  part  of  the  territory  of  the 
United  States  situated  northwest  of  the  river  Ohio,  and  west- 
ward of  a  line  commencing  at  a  point  nearly  opposite  the 
mouth  of  the  Kentucky  river,  and  extending  northward  to  and 
beyond  Port  Recovery,  was  erected  into  a  separate  territory 
by  the  name  of  the  Indiana  Territory,  with  a  government 
seat  at  Vincennes. 

*ln  1774  an  act  called  the  "  Quebec  Act"  was  passed,  which  established  the 
Ohio  river  as  the  Southern  boundary  of  Canada,  and  guarantied  to  the  Catholic  in- 
habitants residing  in  the  territory,  the  right  of  trial  by  jury,  and  the  undisturbed  pos- 
session of  their  churches  and  property.  [Me  Gregor.] 


INDIANA.  189 


II. 

TERRITORY  OF  THE  UNITED  STATES  NORTHWEST  OF 
THE  OHIO  INTO  TWO  SEPARATE  GOVERNMENTS,  APPROV- 
ED MAY  7,  1800. 

"Section  I.  Be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives of  the  United  States  of  America  in  Congress 
assembled,  That  from  and  after  the  fourth  day  of  July  next, 
all  that  part  of  the  territory  of  the  United  States  northwest 
of  the  Ohio  river,  which  lies  westward  of  the  line  beginning 
at  the  Ohio,  opposite  to  the  mouth  of  Kentucky  river,  and 
running  thence  to  Fort  Recovery,  and  thence  north,  until  it 
shall  intersect  the  territorial  line  between  the  United  States 
and  Canada,  shall,  for  the  purpose  of  temporary  government, 
constitute  a  separate  territory,  and  be  called  the  Indiana  ter- 
ritory. 

"  Section  II.  And  be  it  further  enacted,  That  there  shall  be 
established  within  the  said  territory,  a  government,  in  all 
respects  similar  to  that  provided  by  the  ordinance  of  Con- 
gress, passed  on  the  thirteenth  day  of  July,  one  thousand 
seven  hundred  and  eighty-seven,  for  the  government  of  the 
territory  of  the  United  States  northwest  of  the  river  Ohio; 
and  the  inhabitants  thereof  shall  be  entitled  to,  and  enjoy, 
all  and  singular,  the  rights,  privileges,  and  advantages  grant- 
ed and  secured  to  the  people  by  the  said  ordinance. 

"  Section  III.  And  be  it  further  enacted,  That  the  officers 
for  the  said  territory,  who,  by  virtue  of  this  act,  shall  be  ap- 
pointed by  the  President  of  the  United  States,  by  and  with 
the  advice  and  consent  of  the  Senate',  shall  respectively  ex- 
ercise the  same  powers,  perform  the  same  duties,  and  receive 
for  their  services  the  same  compensations,  as,  by  the  ordi- 
nance aforesaid,  and  the  laws  of  the  United  States,  have 
been  provided  and  established  for  similar  officers  in  the  ter- 
ritory of  the  United  States  northwest  of  the  river  Ohio  : 
And  the  duties  and  emoluments  of  Superintendent  of  Indian 


190  TERRITORY  OF 

Affairs  shall  be  united  with  those  of  Governor  :  provided,  that 
the  President  of  the  United  States  shall  have  full  power,  in 
the  recess  of  Congress,  to  appoint  and  commission  all  officers 
herein  authorized ;  and  their  commissions  shall  continue  in 
force  until  the  end  of  the  next  session  of  Congress. 

"  Section  IV.  And  be  it  further  enacted.  That  so  much  of 
the  ordinance  for  the  government  of  the  territory  of  the  Uni- 
ted States  northwest  of  the  Ohio  river,  as  relates  to  the  or- 
ganization of  a  General  Assembly  therein,  and  prescribes  the 
power  thereof,  shall  be  in  force  and  operate  in  the  Indiana 
territory,  whenever  satisfactory  evidence  shall  be  given  to  the 
Governor  thereof,  that  such  is  the  wish  of  a  majority  of  the 
freeholders,  notwithstanding  there  may  not  be  therein  five 
thousand  free  male  inhabitants  of  the  age  of  twenty-one  years 
and  upwards  :  provided  that  until  there  shall  be  five  thousand 
free  male  inhabitants  of  twenty-one  years  and  upwards,  in  said 
territory,  the  whole  number  of  representatives  to  the  General 
Assembly  shall  not  be  less  than  seven,  nor  more  than  nine,tobe 
apportioned  by  the  Governor  to  the  several  counties  in  said 
territory,  agreeably  to  the  number  of  free  males,  of  twenty-one 
years  and  upwards,  which  they  may  respectively  contain. 

"  Section  V.  And  be  it  further  enacted,  That  nothing  in 
this  act  contained,  shall  be  construed  so  as  in  any  manner  to 
affect  the  government  now  in  force  in  the  territory  of  the 
United  States  northwest  of  the  Ohio  river,  further  than  to 
prohibit  the  exercise  thereof  within  the  Indiana  territory, 
from  and  after  the  aforesaid  fourth  day  of  July  next ;  provi- 
ded, that  whenever  that  part  of  the  territory  of  the  United 
States  which  lies  to  the  eastward  of  a  line  beginning  at  the 
mouth  of  the  Great  Miami  river,  running  thence  due  north 
to  the  territorial  line  between  the  United  States  and  Canada, 
shall  be  erected  into  an  independent  State,  and  admitted  into 
the  Union  on  an  equal  footing  with  the  original  States, 
thenceforth  said  line  shall  become  and  remain  permanently 
the  boundary  line  between  such  State  and  the  Indiana  terri- 


INDIANA.  191 

tory ;  any  thing  in  this  act  contained  to  the  contrary  not- 
withstanding. 

"Section  VI.  And  be  it  further  enacted,  That  until  it  shall 
be  other  wise  ordered  by  the  Legislatures  of  the  said  territories, 
respectively,  Chillicothe,  on  the  Scioto  river,  shall  be  the  seat 
of  the  government  of  the  territory  of  the  United  States  north- 
west of  the  Ohio  river ;  and  that  Saint  Vincennes,  on  the 
Wabash  river,  shall  be  the  seat  of  government  for  the  Indi- 
ana territory."  [U.  S.  Statutes  by  Peters,  Vol.  2 :  58.] 

Upon  being  divorced  from  Ohio,  the  inhabitants  of  this 
territory  at  once  entered  upon  a  career  that  has  signalized 
them  as  an  enterprising,  brave  and  generous  people. 

In  1809,  all  that  part  of  Indiana  territory  lying  Mfcst  of 
the  Wabash,  and  a  direct  line  drawn  from  Post  Vincennes 
due  north  to  the  territorial  line  between  the  United  States 
and  Canada, was  by  Congress  erected  into  a  separate  territory 
called  Illinois.  [See  post  Chap.  IV.] 

III.  ACT  OF  CONGRESS  ENTITLED  "  AN  ACT  TO  ENABLE  THE 
PEOPLE  OF  THE  INDIANA  TERRITORY  TO  FORM  A  CONSTI- 
TUTION AND  STATE  GOVERNMENT,  AND  FOR  THE  AD- 
MISSION OF  SUCH  STATE  INTO  THE  UNION  ON  AN  EQUAL 
FOOTING  WITH  THE  ORIGINAL  STATES/'  APPROVED 
APRIL  19,  1816. 

"  Section  I.  Be  it  enacted  by  the  Senate  and  House  of 
Representatives  of  the  United  States  of  America,  in  Con- 
gress  assembled,  That  the  inhabitants  of  the  territory  of 
Indiana  be,  and  they  are  hereby  authorized,  to  form  for  them- 
selves a  constitution  and  state  government,  and  to  assume 
such  name  as  they  shall  deem  proper ;  and  the  said  State, 
when  formed,  shall  be  admitted  into  the  Union  upon  the 
same  footing  with  the  original  States,  in  all  respects  what- 
ever. 

"  Section  II.  And  be  it  further  enacted.  That  the  said  State 
shall  consist  of  all  the  territory  included  within  the  follow- 


192  STATE  OF 

ing  boundaries,  to  wit :  Bounded  on  the  east  by  the  meridian 
line  which  forms  the  western  boundary  of  the  State  of  Ohio  ; 
on  the  south,  by  the  river  Ohio,  from  the  mouth  of  the  Great 
Miami  river  to  the  mouth  of  the  river  Wabash ;  on  the  west, 
by  a  line  drawn  along  the  middle  of  the  Wabash,  from  its 
mouth  to  a  point  where  a  due  north  line  drawn  from  the 
town  of  Vincennes  would  last  touch  the  northwestern  shore 
of  the  said  river  ;  and  from  thence,  by  a  due  north  line,  until 
the  same  shall  intersect  an  east  and  west  line  drawn  through 
ten  miles  north  of  the  southern  extreme  of  Lake  Michigan ; 
on  the  north  by  the  said  east  and  west  line,  until  the  same 
shall  intersect  the  first  mentioned  meridian  line,  which  forms 
the  western  boundary  of  the  State  of  Ohio :  provided,  that 
the  convention  hereinafter  provided  for,  when  formed, 
shall  ratify  the  boundaries  aforesaid  ;  otherwise  they  shall 
be  and  remain  as  now  prescribed  by  the  ordinance  for 
the  government  of  the  territory  northwest  of  the  river  Ohio: 
provided,  also,  that  the  said  States  shall  have  concurrent  ju- 
risdiction on  the  river  Wabash,  with  the  State  to  be  formed 
west  thereof,  so  far  as  the  said  river  shall  form  a  common 
boundary  to  both. 

Section  III.  And  be  it  further  enacted,  That  all  male 
citizens  of  the  United  States,  who  shall  have  arrived  at  the 
age  of  twenty-one  years,  and  resided  within  the  said  territo- 
ry at  least  one  year  previous  to  the  day  of  election,  and 
shall  have  paid  a  county  or  territorial  tax  ;  and  all  persons 
having  in  other  respects  the  legal  qualifications  to  vote  for 
representatives  in  the  General  Assembly  of  the  said  territory, 
be,  and  they  are  hereby  authorized  to  choose  representatives 
to  form  a  convention,  who  shall  be  apportioned  amongst  the 
several  counties  within  the  said  territory,  according  to  the 
apportionment  made  by  the  Legislature  thereof,  at  their  last 
session,  to  wit :  From  the  county  of  Wayne,  four  representa- 
tives ;  from  the  county  of  Franklin,  five  representatives ; 
from  the  county  of  Dearborn,  three  representatives ;  from 


INDIANA.  193 

the  county  of  Switzerland,  one  representative;  from  the 
county  of  Jefferson,  three  representatives  ;  from  the  county 
of  Clark,  five  representatives  ;  from  the  county  of  Washing- 
ton, five  representatives;  from  the  county  of  Kiiox,  five  rep- 
resentatives ;  from  the  county  of  Gibson,  four  representa- 
tives; from  the  couaty  of  Posey,  one  representative;  from 
the  county  of  War  rick,  one  representative  ;  and  from  the 
county  of  Perry,  one  representative.  And  the  election  for 
the  representatives  aforesaid,  shall  be  holden  on  the  second 
Monday  of  May,  one  thousand  eight  hundred  and  sixteen, 
throughout  the  several  counties  in  the  said  territory ;  and 
shall  be  conducted  in  the  same  manner,  and  under  the  same 
penalties,  as  prescribed  by  the  laws  of  said  territory  regula- 
ting elections  therein  for  numbers  of  the  House  of  Represen- 
tatives. 

"  Section  IV.  And  be  it  further  enacted,  That  the  members 
of  the  Convention,  thus  duly  elected,  be,  and  they  are  hereby, 
authorized  to  meet  at  the  seat  of  government  of  the  territory 
on  the  second  Monday  of  June  next ;  which  Convention 
when  met,  shall  first  determine,  by  a  majority  of  the  whole 
number  elected,  whether  it  be  or  be  not  expedient,  at  that 
time,  to  form  a  constitution  and  State  government  for  the 
people  within  the  said  territory ;  and  if  it  be  determined  to 
be  expedient,  the  Convention  shall  be,  and  hereby  are,  au- 
thorized to  form  a  constitution  and  State  government ;  or  if 
it  be  deemed  more  expedient,  the  said  Convention  shall  pro- 
vide by  ordinance  for  electing  representatives  to  form  a  con- 
stitution or  frame  of  government,  which  said  representatives 
shall  be  chosen  in  such  manner,  and  in  such  proportion,  and 
shall  meet  at  such  time  and  place,  as  shall  be  prescribed  by 
the  said  ordinance ;  and  shall  then  form,  for  the  people  of 
said  territory,  a  constitution  and  State  government:  provided 
that  the  same,  whenever  formed,  shall  be  republican,  and 
not  repugnant  to  those  articles  of  the  ordinance  of  the  thir- 
teenth of  July,  one  thousand  seven  hundred  and  eighty- 
9 


194  THE  STATE  OF 

seven,  which  are  declared  to  be  irrevocable  between  the  orig- 
inal States  and  the  people  and  States  of  the  territory  north- 
west of  the  river  Ohio ;  excepting  so  much  of  the  said  arti- 
cles as  relates  to  the  boundaries  of  the  States  therein  to  be 
formed. 

"Section  V.  And  be  it  further  enacted,  That  until  the 
next  general  census  shall  be  taker],  the  said  State  shall  be  en- 
titled to  one  representative  in  the  House  of  Representatives 
of  the  United  States. 

"Section  VI,  And  be  it  further  enacted,  That  the  follow- 
ing propositions  be,  and  the  same  are  hereby,  offered  to  the 
Convention  of  the  said  territory  of  Indiana,  when  formed, 
for  their  free  acceptance  or  rejection,  which,  if  accepted  by 
the  Convention,  shall  be  obligatory  upon  the  United  States  : 

"  First.  That  the  section  numbered  sixteen,  in  every  town- 
ship, and  when  such  section  has  been  sold,  granted,  or  dis- 
posed of,  ojher  lands,  equivalent  thereto,  and  most  contigu- 
ous to  the  same,  shall  be  granted  to  the  inhabitants  of  such 
township  for  the  use  of  schools. 

"  Second.  That  all  salt  springs  within  the  said  territory, 
and  the  land  reserved  for  the  use  of  the  same,  together  with 
such  other  lands  as  may,  by  the  President  of  the  United 
States,  be  deemed  necessary  and  proper  for  working  the  said 
salt  springs,  not  exceeding  in  the  whole  the  quantity  con- 
tained in  the  thirty-six  entire  sections,  shall  be  granted  to 
the  said  State,  for  the  use  of  the  people  of  the  said  State,  the 
same  to  be  used  under  such  terms,  conditions  and  regulations 
as  the  Legislature  of  the  said  State  shall  direct :  provided  the 
said  Legislature  shall  never  sell  or  lease  the  same,  for  a  longer 
period  than  ten  years  at  any  one  time. 

"  Third.  That  five  per  cent  of  the  net  proceeds  of  the 
lands  lying  within  the  said  territory,  and  which  shall  be  sold 
by  Congress  from  and  after  the  first  day  of  December  next, 
after  deducting  all  expenses  incident  to  the  same,  shall  be  re- 
served for  making  public  roads  and  canals,  of  which  three- 


INDIANA.  195 

fifths  shall  be  applied  to  those  objects  within  the  said  State, 
under  the  direction  of  the  Legislature  thereof,  and  two-fifths 
to  the  making  of  a  road  or  roads  leading  to  the  said  State 
under  the  direction  of  Congress. 

"  Fourth.  That  one  entire  township,  which  shall  be  desig- 
nated by  the  President  of  the  United  States,  in  addition  to 
the  one  heretofore  reserved  for  that  purpose,  shall  be  reserved 
for  the  use  of  a  seminary  of  learning,  and  vested  in  the  Leg- 
islature of  the  said  State,  to  be  appropriated  solely  to  the  use 
of  such  seminary  by  the  said  Legislature. 

"  Fifth.  That  four  sections  of  land  be,  and  the  same  are 
hereby  granted  to  the  said  State,  for  the  purpose  of  fixing 
their  seat  of  government  thereon,  which  four  sections  shall, 
under  the  direction  of  the  Legislature  of  said  State,  to  be  lo- 
cated at  any  time  in  said  township  and  range  as  the  Legisla- 
ture aforesaid  may  select,  on  such  lands  as  may  hereafter  be 
acquired  by  the  United  States,  from  the  Indian  tribes  within 
said  territory  :  provided  that  such  locations  shall  be  made 
prior  to  the  public  sale  of  the  lands  of  the  United  States,  sur- 
rounding such  location  :  And  provided  always,  that  the  five 
foregoing  propositions  herein  offered,  are  on  the  conditions, 
that  the  Convention  of  the  said  State  shall  provide,  by  an  or- 
dinance irrevocable,  without  the  consent. of  the  United  States, 
that  every  and  each  tract  of  land  sold  by  the  United  States, 
from  and  after  the  first  day  of  December  next,  shall  be  and  re- 
main exempt  from  any  tax,  laid  by  order  or  under  the  author- 
ity of  the  State,  whether  for  State,  county  or  township,  or  oth- 
er purpose  whatever,  for  the  term  of  five  years,  from  and  after 
the  day  of  sale.  [Peters'  Ed.  U.  S.  Statutes,  Vol.  3  :  399.] 

IV.  ORDINANCE  ACCEPTING  THE  PROPOSALS  OF  CON- 
GRESS, JUNE  29,  1816. 

"Be  it  ordained  by  the  representatives  of  the  people  of 
the  territory  of  Indiana,  in  Convention  met  at  Corydon, 
on  Monday,  the  10th  day  of  June,  in  the  year  of  our  Lord 


196 


LAND  TITLES  IN 


eighteen  hundred  and  sixteen,  That  we  do,  for  ourselves 
and  posterity,  agree,  determine,  declare,  and  ordain,  that  we 
will,  and  do  hereby,  accept  the  propositions  of  the  Congress 
of  the  United  States,  as  made  and  contained  in  their  act  of 
the  nineteenth  day  of  April,  eighteen  hundred  and  sixteen, 
entitled  "an  act  to  enable  the  people  of  the  Indiana  territory 
to  form  a  State  government  and  constitution,  and  for  the  ad- 
mission of  such  State  into  the  Union,  on  an  equal  footing 
with  the  original  States. 

"And  we  do,  further,  for  ourselves  and  our  posterity, 
hereby  ratify,  confirm,  and  establish,  the  boundaries  of  the 
said  State  of  Indiana,  as  fixed,  prescribed,  laid  down,  and 
established,  in  the  act  of  Congress  aforesaid  ;  and  we  do, 
also,  further,  for  ourselves  and  our  posterity,  hereby  agree, 
determine,  declare,  and  ordain,  that  each  and  every  tract  of 
land  sold  by  the  United  States,  lying  within  the  said  State, 
and  which  shall  be  sold  from  and  after  the  first  day  of  De- 
cember next,  shall  be  and  remain  exempt  from  any  tax  laid 
by  order,  or  under  any  authority  of  the  said  State  of  Indiana, 
or  by  or  under  the  authority  of  the  General  Assembly  there- 
of, whether  for  State,  county,  or  township,  or  any  other  pur- 
pose whatever,  for  the  term  of  five  years  from  and  after  the 
day  of  sale  of  any  such  tract  of  land  ;  and  we  do,  moreover, 
for  ourselves  and  our  posterity,  hereby  declare  and  ordain, 
that  this  ordinance,  and  every  part  thereof,  shall  forever  be 
and  remain  irrevocable  and  inviolate,  without  the  consent  of 
the  United  States,  in  Congress  assembled,  first  had  and  ob- 
tained for  the  alteration  thereof,  or  any  part  thereof."  [R.  S. 
Indiana,  37.] 

V.     THE    CONSTITUTION    OF    INDIANA. 

The  Constitution  of  Indiana  was  adopted  in  a  convention 
of  delegates,  held  at  Corydon,  on  the  29th  day  of  June,  eigh- 
teen hundred  and  sixteen.  Unlike  that  of  New- York,  it 
makes  no  mention  of  tenures,  or  estates  in  land.  [See  App.] 


INDIANA.  197 

VI.     LAND    TITLES    GENERALLY    IN    INDIANA. 

The  general  character  of  land  titles  in  the  States  erected 
from  the  territory  northwest  of  the  Ohio  was  indicated  in 
the  preceding  chapter;  but  the  nature  and  divisions  of  es- 
tates in  land  are  set  forth  only  in  the  following  sections  of 
the  Statute. 

"All  estates  tail  are  abolished:  and  all  estates  which,  ac- 
cording to  the  common  law,  would  he  adjudged  a  fee  tail, 
shall  hereafter  be  adjudged  a  fee  simple ;  and  if  no  valid  re- 
mainder shall  be  limited  thereon,  shall  be  a  fee  simple  abso- 
lute." [R.  S.  424,  Sec.  56.] 

"Where  a  remainder  in  fee  shall  be  limited  upon  any  es- 
tate which  would  be  adjudged  a  fee  tail,  according  to  the 
law  as  it  existed  prior  to  the  abolition  of  estates  tail  in  this 
State,  such  remainder  shall  be  valid  as  a  contingent  limita- 
tion upon  a  fee,  and  shall  vest  in  possession,  on  the  death  of 
the  first  taker  without  issue,  living  at  the  time  of  such  death. 
[Id.,  Sec.  57.] 

"  A  future  estate  shall  be  deemed  and  construed  to  be  any 
estate  limited  to  commence  in  possession  at  a  future  day, 
either  without  the  intervention  of  a  precedent  estate,  or  on 
the  determination,  by  lapse  of  time  .or  otherwise,  of  any 
precedent  estate,  created  at  the  same  time ;  and  when  any 
such  future  estate  is  dependent  on  a  precedent  estate,  it  may 
be  termed  a  remainder."  [Id.,  Sec.  58.] 

"  A  freehold  estate,  as  well  as  a  chattel  real,  may  be  created 
to  commence  at  a  future  day  ;  and  an  estate  for  life  may  be 
created  in  a  term  of  years,  and  a  remainder  limited  thereon ; 
a  remainder  of  a  freehold,  or  a  chattel  real,  either  contingent 
or  vested,  may  be  created,  expectant  on  the  determination  of 
a  term  of  years,  and  a  fee  may  be  limited  on  a  fee,  upon  a 
contingency,  which,  if  it  should  occur,  must  happen  within 
the  period  prescribed  in  this  article."  [Id.,  Sec.  59.] 

"  Two  or  more  future  estates  may  be  created,  to  take  effect 


198  LAND  TITLES  IN 

in  the  alternative,  so  that,  if  the  first  in  order  shall  fail  to  vest, 
the  next  in  succession  shall  be  substituted  for  it,  and  take 
effect  accordingly."  [Id.,  Sec.  60.] 

"A  remainder  may  be  limited  on  a  contingency,  which,  in 
case  it  should  happen,  will  operate  to  abridge  or  determine 
the  precedent  estate  ;  and  every  such  remainder  shall  be  con- 
strued a  conditional  limitation,  and  shall  have  the  same  effect 
as  such  a  limitation  would  have  by  law."  [Id.,  Sec.  61.] 

"  No  future  estate  otherwise  valid  shall  be  void,  on  the 
ground  of  the  probability  or  improbability  of  the  contingency 
on  which  it  is  limited  to  take  effect."  [Id.,  Sec.  62.] 

"  No  remainder,  valid  in  its  creation,  shall  be  defeated  by 
the  determination  of  the  precedent  estate,  before  the  happen- 
ing of  the  contingency  on  which  the  remainder  is  limited  to 
take  effect ;  but  should  such  contingency  afterwards  happen, 
the  remainder  shall  take  effect  in  the  same  manner  and  to  the 
same  extent  as  if  the  precedent  estate  had  continued  to  the 
same  period."  [Id.,  Sec.  63.] 

"A  conveyance  made  by  a  tenant  for  life  or  years,  purport- 
ing to  grant  or  convey  a  greater  estate  than  he  possessed,  or 
could  lawfully  convey,  shall  not  work  a  forfeiture  of  his  es- 
tate, but  shall  pass  to  the  grantee  or  alienee  all  the  estate 
which  the  tenant  coujd  lawfully  convey."  [Id.,  Sec.  64.] 

"  No  expectant  estate  shall  be  barred  by  any  alienation,  or 
other  act  of  the  owner  of  the  precedent  estate,  nor  by  any 
destruction  of  such  precedent  estate  by  disseisin,  or  the  for- 
feiture, surrender,  or  merger  thereof."  [Id.,  Sec.  65.] 

"  The  absolute  power  of  aliening  real  estate  shall  not  be 
suspended  by  any  limitation  or  condition  whatever,  contain- 
ed in  any  grant,  conveyance,  or  devise,  for  a  longer  period 
than  during  the  existence  of  a  life,  or  any  number  of  lives, 
in  being  at  the  creation  of  the  estate  conveyed,  granted,  or 
devised,  and  therein  specified,  with  the  exception  that  a  con- 
tingent remainder  in  fee  may  be  created  on  a  prior  remainder 
in  fee,  to  take  effect  in  the  event  that  the  person  or  persons 


INDIANA.  199 

to  whom  the  first  remainder  is  limited  shall  die  under  the 
age  of  twenty-one  years,  or  upon  any  other  contingency  hy 
which  the  estate  of  such  person  or  persons  may  be  deter- 
mined, before  they  attain  their  full  age."  [Id.,  Sec.  66.] 

"  Where  a  remainder  for  life  shall  be  limited  on  any  other 
than  a  life  or  lives  in  being  at  the  creation  of  such  estate,  all 
the  life  estates,  subsequent  to  those  persons  entitled  to  take 
life  estates,  according  to  the  provisions  of  the  last  preceding 
section  shall  be  void ;  and  upon  the  death  of  those  persons 
entitled  to  take,  the  remainder  shall  take  effect,  in  the  same  man- 
ner as  if  such  void  estates  had  not  been  created."  [Id.,  Sec.  67,] 

"  No  remainder  shall  be  created  upon  an  estate  for  the  life 
of  any  other  person  or  persons  than  that  of  the  grantee  or 
devisee  of  such  estate,  unless  such  remainder  be  an  estate  in 
fee ;  nor  shall  any  remainder  be  created  upon  such  an  estate 
for  life,  in  a  term  for  years,  unless  such  remainder  be  for  the 
whole  residue  of  the  lerm.:'  [Id.,  Sec.  68.] 

"  When  a  remainder  shall  be  created  upon  any  such  life 
estate  as  is  specified  in  the  last  preceding  section,  and  more 
persons  shall  be  named,  as  the  persons  during  whose  lives 
the  life  estate  shall  continue,  than  were  in  being  at  the  crea- 
tion of  such  estate,  such  remainder  shall  take  effect  upon  the 
death  of  the  persons  entitled,  under  the  conveyance,  grant, 
or  devise,  according  to  the  provisions  of  this  article,  in  the 
same  manner  as  if  no  other  lives  had  been  introduced 
therein.  [Id.,  Sec.  69.] 

"  A  contingent  remainder  shall  not  be  created  on  a  term  of 
years,  unless  the  nature  of  the  contingency  on  which  such 
remainder  is  limited  be  such,  that  the  remainder  must  vest 
in  interest,  during  the  continuance  of  one  or  more  lives,  in 
being  at  the  creation  of  such  remainder,  or  at  the  termination 
of  said  lives ;  and  no  estate  for  life  shall  be  limited,  as  a  re- 
mainder on  a  term  of  years,  except  to  a  person  in  being  at 
the  creation  of  such  estate."  [Id.,  Sec.  70.] 

"All  the  provisions  contained  in -this  article,  respecting  fu- 


200  EXECUTION  OF  DEEDS  IN 

ture  estates,  shall  be  construed  to  apply  to  limitations  of 
chattels  real,  as  well  as  of  freehold  estates,  so  that  the  ab- 
solute ownership  of  a  term  of  years  shall  not  be  suspended 
for  a  longer  period  than  the  absolute  power  of  alienation  can 
be  suspended,  in  respect  to  a  fee."  [Id.,  Sec.  71.] 

"  The  delivery  of  the  deed,  where  an  expectant  estate  is 
created  by  deed,  and  the  death  of  the  testator,  where  it  is 
created  by  devise,  shall  be  deemed  the  time  of  the  creation 
of  the  estate."  [Id.,  Sec.  72.] 

"  Where  a  remainder  shall  be  limited  to  take  effect  on  the 
death  of  any  person  without  heirs,  or  heirs  of  his  body,  or 
without  issue,  the  words  "heirs"  or  "issue"  shall  be  construed 
to  mean  heirs  or  issue  living  at  the  death  of  the  person  named 
as  ancestor."  [Id.,  Sec.  73.] 

"  Where  a  future  estate  shall  be  limited  to  heirs,  or  issue, 
or  children,  posthumous  children  shall  be  entitled  to  take 
the  estate,  in  the  same  manner  as  if  born  before  the  death  of 
their  parent;  and  any  future  estate  depending  on  the  contin- 
gency of  the  death  of  any  person  without  heirs,  or  issue,  or 
children,  shall  be  defeated  by  the  birth  of  a  posthumous  child 
of  such  person,  capable  of  taking  by  descent."  [Id.,  Sec.  74.] 

VII.  EXECUTION  OF  DEEDS  AND  MORTGAGES  OF  LAND 
IN  INDIANA. 

By  the  Revised  Statutes  of  Indiana,  all  conveyances  of  land, 
or  of  any  estate  or  interest  therein,  except  leases  for  a  term 
not  exceeding  three  years,  are  required  to  be  by  deed,  in  wri- 
ting, subscribed  and  sealed  by  the  person  from  whom  the 
lands,  estate,  or  interest  conveyed  is  intended  to  pass,  or  by 
his  lawful  attorney  ;  and  that  if  a  deed  be  not  acknowledged 
previous  to  its  delivery,  an  attesting  witness  is  necessary. 
[R.  S.,  416,  Sec.  16,  17.]  A  verbal  transfer  of  land  is  void. 
The  same  rule  concerning  the  form  and  execution  of  deeds 
obtains  in  Indiana  that  controls  in  New- York,  except  that 
here  the  sealing  may  be  done  with  ink.  The  provision  of 


INDIANA.  201 

the  statute  is,  "that  all  deeds,  conveyances,  bonds,  and  pow- 
ers of  attorney  for  the  conveyance  of  real  estate,  or  of  any 
interest  therein,  shall  be  executed  with  a  seal,  either  of  wax, 
or  wafer,  or  of  ink  ;  and  all  other  instruments  of  writing  to 
which,  by  law  or  the  agreement  of  the  parties,  a  seal  is  neces- 
sary, may  be  sealed  by  any  of  those  methods."  The  sealing 
with  ink  is  performed  by  making  an  indented  circle  or  scroll 
at  the  end  of  the  name,  and  inserting  the  letters  L.  S.  therein ; 
yet  it  has  been  decided  that  it  is  not  necessary  to  the  validity 
of  a  scroll  as  a  seal,  that  any  letters  or  word  whatever, 
should  l)e  enclosed  in  it.  [Kilgore  vs.  Powers,  5  Blackf.,  22.] 

No  witnesses  to  the  execution  of  a  deed  are  required,  if 
it  be  duly  acknowledged  before  its  delivery  to  the  grantee 
therein.  [R.  S.,  417,  Sec.  14.]  To  enable  an  attorney  to 
execute  a  deed  lawfully,  he  must  be  thereunto  authorized  by 
an  instrument  in  writing,  executed  by  his  principal,  and 
sealed  and  acknowledged  in  like  manner  as  such  conveyance 
would  be  required  to  be  executed  and  acknowledged  by  the 
principal.  [Id.,  Sec.  15.]  No  covenant  will  be  implied  in 
any  conveyance  of  real  estate,  whether  it  contain  real  cove- 
nants or  not;  if  a  covenant  of  seizin,  warranty  or  the  like, 
be  intended,  the  deed  must  express  it. 

As  mortgages  are  but  defeasible  deeds,  they  come  within 
the  term  "conveyances"  used  in  the  statute;  and  as  no  spe- 
cial provisions  have  been  made  in  respect  to  them,  their 
execution  and  attestation  are  left  upon  the  same  footing  as 
that  of  absolute  conveyances. 

The  effect  of  a  deed  is  declared  to  be  the  passing  of  the 
incident  as  well  as  the  principal,  and  that  when  lands  are 
conveyed  all  tenements  thereon  and  hereditaments  thereunto 
appertaining  also  pass.  [R.  S.,  423,  Sec.  52.]  A  deed  of 
land,  embraces  all  chattels  real  thereon,  or  affixed  thereto ; 
but  no  greater  estate  or  interest  shall  be  construed  to  pass  by 
any  conveyance  than  the  grantor  himself  possessed  at  the 
delivery  of  the  deed,  or  could  then  lawfully  convey,  except 


202  ACKNOWLEDGMENT  OF  DEEDS  IN 

that  every  grant  and  conveyance  shall  be  conclusive  as 
against  the  grantor  and  his  heirs  claiming  from  him  by  de- 
scent. [Id.,  417,  Sec.  23.] 

Deeds  containing  any  provision  for  the  revocation  or  deter- 
mination of  the  same  at  the  will  of  the  grantor,  are  declared 
by  statute  to  be  void  as  against  subsequent  purchasers,  in 
good  faith  and  for  a  valuable  consideration  ;  and  all  convey- 
ances or  assignments  in  writing,  or  otherwise,  of  any  estate 
or  interest  in  lands,  tenements  or  hereditaments,  to  hinder, 
delay  or  defraud  creditors  or  other  persons  of  their  lawful 
suits,  damages,  forfeitures,  debts  or  demands,  are  also  void. 
[Id.,  591,  Sec.  16.]  But  in  such  case,  it  has  been  held,  that 
the  conveyance  passes  the  title  to  the  grantee,  subject  to  the 
rights  of  creditors,  and  subsequent  purchasers  who  claim 
under  creditors,  and  cannot  be  questioned  by  the  grantor 
himself,  or  by  strangers  who  have  no  claim.  [Burget  vs. 
Burget,  1  Ohio  R.5  469.  Barr  vs.  Hatch,  et.  al.,  3  Ohio  R., 
395.] 

VIII.  THE  PROOF  AND  ACKNOWLEDGMENT  OF  DEEDS 
AND  MORTGAGES  IN  INDIANA. 

To  entitle  any  deed  or  mortgage  to  be  recorded,  it  must  be 
acknowledged  by  the  party  or  parties  executing  the  same,  or 
proved  by  a  subscribing  witness  thereto,  or  by  proof  of  the 
handwriting  of  the  parties  thereto,  or  of  any  subscribing 
witness.  Such  proof  or  acknowledgment  is  required  by 
statute  to  be  made  before  a  Supreme  Judge,  Judge  of  a  Cir- 
cuit Court,  Justice  of  the  Peace,  Recorder,  Notary  Public,  or 
Mayor  of  a  city  within  the  State,  or  before  a  Judge  of  a  Su- 
preme or  Circuit  Court,  or  Court  of  Common  Pleas,  Justice 
of  the  Peace,  or  Mayor  or  Recorder  of  a  city,  or  Notary  Pub- 
lic, of  any  other  State,  or  before  any  Commissioner  appointed 
by  the  Governor  of  this  State  in  another  State  for  such  pur- 
pose, or  before  a  Minister  Plenipotentiary,  Charge  d' Affaires, 


INDIANA.  203 

or  Consul  of  the  United  States,  in  a  foreign  country.     [R.  S. 
Indiana,  418,  Sec.  28.] 

In  case  of  refusal  or  inability  of  the  grantor  to  acknowledge 
his  deed  or  mortgage,  and  where  he  shall  have  died  after  the 
execution  but  before  acknowledgment  thereof,  a  provision  is 
made  as  follows:  "If  any  grantor  shall  refuse  to  acknowledge 
any  deed,  conveyance,  or  instrument  of  writing,  executed  by 
him,  which  by  law  is  required  to  be  recorded,  the  grantee, 
or  any  person  claiming  under  him,  may  apply  to  any  officer 
authorized  by  law  to  take  the  acknowledgment  of  such  deed, 
conveyance,  or  instrument  of  writing,  in  the  county  where 
the  land  lies,  or  where  such  grantor,  or  any  subscribing  wit- 
ness resides ;  and  such  officer  shall  thereupon  issue  a  sum- 
mons to  such  grantor  to  appear  at  a  certain  time  and  place 
before  such  officer,  to  hear  the  testimony  of  the  subscribing 
witness  to  the  deed ;  and  such  summons,  with  a  copy  of  the 
deed  annexed,  shall  be  served  upon  the  grantor  by  such 
person  as  such  officer  shall  designate,  at  least  seven  days 
before  the  time  therein  assigned  for  proving  the  deed,  con- 
veyance, or  other  instrument  of  writing.  At  such  hearing, 
or  at  any  adjournment  thereof,  the  due  execution  of  such 
deed,  conveyance,  or  instrument  in  writing  may  be  proved 
by  the  testimony  of  one  or  more  of  the  subscribing  witnesses 
thereto  ;  or  if  they  are  dead,  insane,  or  out  of  the  State,  then 
by  due  proof  of  the  handwriting  of  the  grantor  or  of  any 
witness  thereto  ;  and  if  proved  to  the  satisfaction  of  the  officer, 
he  shall  certify  the  same  on  the  deed,  conveyance,  or  instru- 
ment in  writing,  and  in  such  certificate  shall  note  the  pres- 
ence or  absence,  as  the  case  may  be,  of  such  grantor.  If  the 
grantor  in  any  deed,  conveyance,  or  instrument  in  writing 
required  to  be  recorded  shall  be  dead,  or  shall  have  left  the 
State,  or  cannot  be  found,  and  shall  not  have  acknowledged 
the  same,  it  may  be  proved  before  any  officer  authorized  to 
take  the  acknowledgment  thereof,  by  the  testimony  of  any 
subscribing  witness  thereto.  If  any  such  grantor  shall  refuse 


204  ACKNOWLEDGMENT  OF  DEEDS  IN 

to  acknowledge  any  such  deed,  conveyance,  or  instrument 
in  writing,  or  shall  be  dead  or  out  of  the  State,  and  the  sub- 
scribing witness  or  witnesses  thereto  are  dead,  out  of  the 
State,  or  cannot  be  found,  the  same  may  be  proved  before 
any  officer  authorized  to  take  the  acknowledgment  thereof, 
by  proving  the  handwriting  of  the  grantor  or  grantors,  or  of 
any  subscribing  witness  thereto.  [11.  S.,  Sec.  33.] 

A  copy  of  the  unacknowledged  deed  may  be  filed  with 
the  Recorder  as  a  "caution,"  which,  during  the  ensuing  thirty 
days,  will  have  the  same  effect  as  recording.  [See  effect  of  re- 
cording, post  206.]  But  where  the  execution  of  a  deed  shall  be 
proved,  the  proof  must  be  made  by  a  disinterested  and  com- 
petent witness ;  and  the  testimony  taken,  together  with  the 
name  or  names  of  the  witness  or  witnesses,  and  place  or 
places  of  his  or  their  residence,  are  required  to  be  set  forth 
in  the  officer's  certificate.  Proof,  however,  of  the  execution 
of  a  deed  is  inadmissible  where  there  was  no  subscribing 
witness  to  the  same. 

In  this  State,  as  in  Ohio,  where  a  married  woman  joins  in 
a  conveyance  with  her  husband,  she  is  required  to  have  the 
contents  of  the  deed  made  known  to  her  by  the  officer;  and 
and  on  an  examination,  "private,  separate,  and  apart  from, 
and  without  the  hearing  of  her  husband,"  must  acknowledge 
that  she  executed  such  deed  or  conveyance,  "  of  her  own 
free  will  and  accord,  and  without  any  coercion  or  compulsion 
from  her  husband." 

A  married  woman  under  twenty-one  years  of  age,  but 
over  eighteen,  in  addition  to  the  above,  must  obtain  the  con- 
sent of  her  father  or  guardian,  who  must  declare  before  the 
acknowledging  officer,  that  he  believes  that  such  release  and 
relinquishment  of  dower  is  for  the  benefit  of  such  married 
woman,  and  that  it  would  be  prejudicial  to  her,  and  her  hus- 
band, to  be  prevented  from  disposing  of  the  lands  conveyed. 
[Id.,  Sec.  41.]  Although,  as  a  general  rule,  full  age  alone  gives 
capacity  to  convey,  a  married  woman  over  eighteen  but  un- 


INDIANA.  205 

der  twenty-one  years  of  age,  may,  if  the  above  condition  be 
complied  with.  And  where  a  married  woman  joins  in  a 
power  of  attorney  authorizing  another  to  convey,  the  power 
is  ineffectual  to  authorize  a  conveyance  of  her  interest,  except 
it  be  thus  acknowledged. 

The  acknowledgment  or  proof  must  be  certified,  and 
which  certificate  is  required  to  he  endorsed  upon  the  deed,  or 
annexed  thereto.  [Id,  Sec.  43.]  Not,  however,  that  the  deed 
was  on  such  a  day  acknowledged  or  proven  according  to  law, 
but  certifying  that  such  and  such  acts  were  done  and  per- 
formed as  in  law,  are  required  to  be  done  by  the  grantor,  or 
a  witness  or  witnesses,  to  constitute  a  valid  acknowledg- 
ment. There  is  a  prevailing  aptitude  amongst  public  offi- 
cers to  err  in  this  particular,  and  thereby  frequently  subject 
parties  to  great  inconvenience,  from  defective  certificates. 
Facts,  not  conclusions,  are  called  for,  in  the  certificate.  If 
the  grantor  appeared  before  the  officer,  let  the  certificate  so 
state ;  if  he  were  personally  known  to  the  officer,  let  it  so  state ; 
if  he  were  not  known,  but  was  identified  by  another,  let  the 
latter  be  named,  and  that  he  was  sworn,  and  on  oath  testi- 
fied that  the  person  appearing  as  grantor  was  the  same  person 
who  executed  the  deed :  if  such  proof  be  satisfactory,  con- 
cerning the  identity,  that  should  be  stated.  And  if  the  deed 
were  not  acknowledged,  but  proved  by  a  subscribing  witness, 
or  by  proving  the  handwriting  of  the  grantor,  the  certificate 
must  contain  the  names,  residence,  and  testimony  of  the 
witness  or  witnesses  sworn.  So  also  as  to  the  making  known 
to  a  married  woman  the  contents  and  purport  of  a  deed,  and 
of  her  "private  examination,  separate  and  apart  from  her 
husband,  and  without  his  hearing  ;"  the  facts  alone,  not  the 
conclusions  of  the  officer,  must  be  stated  in  the  certificate. 

This  is  required  in  cases  where  a  married  woman,  un- 
der the  age  of  twenty  *one,  but  over  eighteen  years  of  age, 
acknowledges  a  deed  or  conveyance  with  the  consent,  and 
with  the  declaration,  of  her  father  or  guardian,  that  her  re- 


206  RECORDING  OF  DEEDS  IN 

lease  or  relinquishment  of  dower  is  for  her  benefit,  and  that 
it  would  be  prejudicial  to  her  and  her  husband,  to  be  prevent- 
ed from  disposing  of  the  lands  thus  conveyed.  Any  certifi- 
cate which  does  not  fully  recite  all  these  facts,  falls  short  of 
the  requirements  of  the  statute,  and  is  void.  Too  much 
care,  therefore,  cannot  be  taken  by  acknowledging  officers  in 
this  particular.  A  deed  improperly  certified  can  neither  be 
legally  recorded,  nor  read  in  evidence. 

"What  lias  been  said  of  a  deed  is  also  true  of  a  power  of 
attorney  to  convey  land,  or  a  mortgage  incumbering  it.  All 
such  and  similar  instruments  are  required  to  be  acknowledged 
or  proved  in  the  same  way ;  and  the  acknowledgment  or 
proof  to  be  certified  in  the  same  mariner.  Arid  "  no  ac- 
knowledgment or  proof  of  the  execution  of  any  deed  or  con- 
veyance taken  by  any  officer  authorized  to  take  the  same, 
shall  entitle  such  deed  or  conveyance  to  be  recorded,  unless 
taken  in  the  county,  district,  place,  State,  territory,  or  country, 
to  which  the  jurisdiction  of  such  officer  extends,  or  within 
which  he  is  required  to  reside."  [Id.,  Sec.  45.] 

IX.  THE  RECORDING  OF  DEEDS  AND  MORTGAGES  IN 
INDIANA,  AND  THE  EFFECT  THEREOF. 

The  Registry  Act  of  Indiana  requires  "every  conveyance 
of  any  real  estate  in  fee  simple,  or  of  any  interest  therein,  or 
for  life,  or  of  any  "future  estate,  and  every  lease  for  more 
than  three  years  from  the  making  thereof,  to  be  recorded  in 
the  Recorder's  office  of  the  county  where  such  real  estate  or 
leasehold  shall  be  situated ;  and  every  such  conveyance  or 
lease  not  so  recorded  within  ninety  days  from  the  execution 
thereof  shall  be  fraudulent,  and  void,  as  against  any  subse- 
quent purchaser,  or  mortgagee  in  good  faith,  and  for  a  valu- 
able consideration."  [R.  S.,  418,  Sec.  25.] 

The  leading  object  of  recording  is  to  give  notice  of  the 
existence  of  the  conveyance.  Not  only  does  a  registry  at- 
tain that  object  in  law,  but  it  is  a  cheap  arid  feasible  method 


INDIANA.  207 

of  accomplishing  the  object,  and  at  the  same  time  spreads 
upon  the  public  records  perpetual  evidence  of  title.  A  sub- 
sequent purchaser,  with  notice  of  the  former  deed,  acquires 
no  priority  over  it,  yet  the  proof  of  that  notice  is  often  diffi- 
cult, and  generally  uncertain.  It  were  better  in  all  cases  to 
record  a  deed. 

Concerning  mortgages,  also,  it  is  provided  "  that  every  deed 
or  conveyance  in  the  nature  of  a  mortgage  of  real  estate,  or 
of  any  interest  or  estate  therein,  shall  be  recorded  in  the  Re- 
corder's office  of  the  county  wherein  the  same  is  situated, 
within  ninety  days  after  the  execution  thereof;  and  if  not 
so  recorded,  the  same  shall  be  adjudged  fraudulent  and  void 
against  any  subsequent  purchaser  or  mortgagee  in  good  faith, 
and  for  a  valuable  consideration."  [Id.,  Sec.  26.] 

Whenever  a  deed,  absolute  on  its  face,  is  intended  to  be 
made  defeasible  by  a  separate  defeasance,  it  is  provided  that 
such  deed  shall  not  thereby  be  defeated  or  affected  as  against 
any  person  other  than  the  maker  of  the  defeasance,  or  his 
heirs  or  devisees,  or  persons  having  actual  notice  thereof,  un- 
less the  instrument  of  defeasance  shall  have  been  recorded 
in  the  record  of  deeds  for  the  county  where  the  lands  lie." 
There  appears  to  be  no  requirement  in  the  Statutes  of  Indi- 
ana requiring  different  sets  of  books  to  be  provided  in  which 
to  record  deeds  and  mortgages  ;  and  hence  the  requirement 
in  New-York,  that  a  deed  intended  as  a  mortgage  shall  be 
recorded  as  a  mortgage,  has  no  application  here.  [4  Blackf., 
522;  5  Id.,  123.] 

The  statute  also  provides  that  the  certificate  or  certificates 
of  the  proof  or  acknowledgment,  together  with  any  legal  cer- 
tificate of  authentication  that  may  be  attached,  shall  go  upon 
the  record  with  the  conveyance  itself;  and  that  unless  the 
same  be  recorded  with  the  conveyance,  neither  the  record  of 
the  conveyance,  nor  any  transcript  thereof,  shall  be  received 
in  evidence.  [Id.,  Sec.  48.] 

In  reference  to  deeds  and  mortgages  that  are  acknowledged 


20S  RECORDING  OF  DEEDS  IN 

or  proved  abroad,  the  following  provisions  occur:  "When 
any  deed,  conveyance,  mortgage,  or  other  instrument  re- 
quired to  be  acknowledged  or  proved  in  any  other  county  in 
this  State  than  the  one  in  which  the  same  is  required  to  be- 
recorded,  the  acknowledgment  or  proof  thereof  may  be  taken 
by  any  officer  herein  authorized  to  lake  such  acknowledg- 
ment or  proof,  and  certified  by  the  Clerk  of  the  Circuit  Court 
of  the  county  in  which  such  officer  resides,  and  attested  by 
the  seal  of  said  court,  except  when  such  acknowledgment  or 
proof  is  taken  by  a  Notary  Public,  or  a  Mayor  of  a  city,  in 
which  case  such  acknowledgment  or  proof,  certified  and  at- 
tested under  the  hand  and  official  seal  of  such  Notary  or 
Mayor,  shall  be  sufficient."  [R.  S.,  Sec.  37,  420.] 

"  All  deeds  and  conveyances,  acknowledged  or  proved  out 
of  this  State  and  within  the  United  States,  or  any  of  the  ter- 
ritories thereof,  and  brought  hither  to  be  recorded,  may  be 
acknowledged  or  proved  before  any  officer  authorized  to  take 
such  acknowledgment  or  proof  in  another  State,  and  certi- 
fied by  the  Clerk  of  any  Court  of  Record  of  the  county  in 
which  such  officer  resides,  and  attested  by  the  seal  of  said 
court,  unless  such  acknowledgment  or  proof  shall  have  been 
taken  before  the  Mayor  or  Recorder  of  a  city,  Notary  Pub- 
lic, or  Commissioner,  to  take  the  acknowledgment  of  deeds, 
appointed  by  the  Governor  of  this  State  ;  in  which  case  such 
acknowledgment  or  proof  shall  be  certified  under  the  hand 
of  such  officer,  and  attested  by  his  official  seal."  [Id..  Sec.  38.] 

"If  the  parties  executing  any  deed,  conveyance,  or  instru- 
ment which  is  to  be  recorded  in  this  State,  shall  acknowledge 
the  same  in  any  foreign  country,  the  acknowledgment  or 
proof  thereof,  as  aforesaid,  shall  be  certified  under  the  hand 
and  official  seal  of  the  Minister,  Charge  d' Affairs,  or  Consul 
of  the  United  States,  taking  the  same."*  [Id.,  Sec.  38.] 

*  Non-residfnt  land  owners  may  observe  in  this  note  the  several  recording  districts 
or  counties  in  Indiana,  in  small  capital  letters,  with  the  county  seat  annexed,  viz : 
ADAMS,  Dccatur ;  ALLKN,  Fort  Wayne;  BARTHOLOMEW,  Columbus;  BENTON, 


INDIANA.  209 

X.      EXECUTION  OF    WILLS  OF    REAL  ESTATE  IN  INDIANA. 

All  persons,  except  married  women,  infants,  idiots  and 
persons  of  unsound  mind  may  devise,  by  a  last  will  and  tes- 
tament, their  lands,  tenements  and  hereditaments,  or  any 
interest  therein,  descendible  to  their  heirs;  arid  the  same 
may  be  made  to  any  person  or  corporation  capable  in  law  of 
holding:  real  estate.  [R.  S.,  485,  Sec.  1,  2.]  And  every  per- 
son capable  in  law  of  devising  real  estate,  may  bequeath  per- 
sonal property  by  a  last  will  and  testament.  [Id.,  Sec.  7.]  The 
statute  requires  all  wills,  whether  real  or  personal  estate, 
(except  nuncupative  wills  of  personal  property)  to  be  in  wri- 
ting, and  signed  by  the  testator,  or  by  some  person  in  his 
presence,  and  by  his  express  direction,  and  attested  and  sub- 
scribed in  the  presence  of  such  testator,  by  two  or  more  com- 
petent witnesses.''  [R.  S.,  491,  Sec.  1.] 

Oxford;  BLACKFORD,  Hartford;  BOONE,  Lebanon;  BROWN,  Nashville;  CARROLL, 
Di'lphi ;  C\-  >ort;  CLARK,  Charlostown;  CLAY,  Bowling1  Green  ;  CLIN- 

TON, Frankfort ;  CRVWKOUO,  Kivdonia  ;  DAVIES*,  \V;ishiii£tun  ;  DKAUUORN,  Law- 
renceburgh;  DECATUU,  Greensburgh ;  DKKALB,  Auburn ;  DELAWARE,  Munrie- 
town;  Dunois,  Jasprr;  ELKHART,  Goshrn;  FAYKTTE,  ConiuTsville ;  FLOYD, 
X-v. -Albany  ;  FoV4rTAiir,Govin£ton;  FRANKLIN,  Brookville;  FULTON,  Rochester; 

s,  rrincotoji;  (n:  .  N,  Blnomlirld  ;  HAMILTON,  Noblesville; 

..•III;     1 1  AUIUSON    Corydon;    HKNORICKS,    Danville;    HENRY; 

:   Ili'NTiNOToN,  IIuntin£!on;  JACKSON,  Brownstown ;  JASPER,  Rens- 

:  JAY,  l'orr!;i:i,l ;  .) :  ;-j  r.u>(>.\,  Mndi^ou;  JENNINGS,  Vei-non ;  JOHNSON, 
1'nKiUlin;  KNOX,  Vincennes;  KosciusKO,  Warsaw;  LAGRANGE,  Lima;  LAKE, 
Crown  Point;  LAPORTE,  Laporte ;  LAWRENCE,  Bedford;  MADISON,  Anderson- 
town;  MARION,  Indianapolis;  MARSHALL,  Plymouth ;  MARTIN,  Mount  Pleasant; 
MIAMI,  Porn;  MONROE,  I'looniin-ton ;  MONTGOMERY,  Crawfordsville ;  MORGAN, 
Martinsville  ;  NOHI.E,  Port  Mitchell ;  OHIO,  Rising  Sun;  ORANGE,  Paoli ;  OWEN, 
Spencer;  PARKE,  Rockville;  PERRY,  Rome;  PIKE,  Petersburgh ;  PORTER.  Val- 
paraiso; POSEY,  Montgomery;  PULASKI,  Winamac;  PUTNAM,  Greencastle  ;  RAN- 
DOLPH, Winchester;  RICHARDVILLE,  Kokomo;  RIPLEY,  Versailles;  RUSH,  Rush- 
ville ;  Scott,  Lexington:  SHELBY,  Shelbyville;  SPENCER,  Rockport;  STEUCJIN, 
Angola;  ST.  JOSEPH'S,  South  Bend;  SULLIVAN,  Sullivan;  SWITZERLAND,  Ve- 
vay;  TIPPECANOE,  Lafayette;  TIPTON,  Canton ;  UNION,  Liberty;  VANDERBURGH  ; 
Evansville;  VERMILLION,  Newport;  VIGO,  Terrehaute  ;  WABASH,  Wabash;  WAR- 
RF.N,  Williamsport ;  WARRICK,  Booneville ;  WASHINGTON,  Salem;  WAYNE,  Cen- 
treville;  WELLS,  Bluffton;  WHITE,  Monticello;  WHITLEY,  Columbia.  [Cady's 
Register.] 

9* 


210  EXECUTION  OF  WILLS  IN 

In  comparison  with  those  in  New- York,  the  requirements 
in  this  behalf  are  few  and  easy  of  performance.  And  yet 
an  exact  observance  with  such  as  the  Statutes  do  contain  is 
indispensable  to  the  validity  of  a  will.  They  are  rules  which 
are  inflexible  and  unbending.  Thus  the  form  of  the  will 
is  unimportant,  except  so  far  as  its  perspicacity  is  concerned  ; 
it  may  be  signed  either  with  the  name  or  mark  by  the 
testator,  or  another  in  his  presence  by  his  direction  ;  and 
the  presence  and  attestation  of  two  witnesses  completes 
the  execution.  Legatees  when  they  consent  to  become  wit- 
nesses, lose  their  legacy  over  and  above  the  amount  that 
they  would  inherit,  if  the  decedent  had  died  intestate.  [2 
Blackf,  355.] 

The  witnesses  should  be  legal  witnesses,  competent  in  re- 
spect to  capacity,  character  and  disinterest.  Yet  if  witnesses 
are  competent  at  the  time  of  attesting  the  execution  of  a  will 
or  testament,  their  subsequent  incompetcncy,  from  whatever 
cause  it  may  arise,  will  not  prevent  the  probate  and  allow- 
ance of  the  will,  if  it  be  otherwise  satisfactorily  proved. 

Codicils  to  written  wills  are  required  to  be  executed  in  the 
same  manner  as  wills. 

The  provisions  relating  to  the  right  of  the  testator  to  de- 
vise and  bequeath  all  his  property,  subject  to  the  right  of 
dower  of  his  wife  if  he  leave  one  surviving,  and  the  right  of 
posthumous  children  to  inherit,  if  not  provided  for,  are  sub- 
stantially the  same  as  in  New- York.  [Ante  108.]  Concern- 
ing revocations,  it  occurs  that  <£  no  will  or  testament  in  wri- 
ting, nor  any  clause  thereof,  except  as  hereinafter  specified, 
shall  be  revoked,  unless  by  burning,  tearing,  cancelling  and 
obliterating  the  same  with  the  intention  of  revoking  it,  by 
the  testator  himself,  or  by  some  person  in  his  presence,  and 
by  his  direction  and  consent,  or  by  some  other  will,  codicil, 
or  other  writing,  signed,  subscribed  and  attested  as  required 
in  the  foregoing  section  (that  is  that  which  relates  to  the 
signing  and  attestation  of  wills,)  of  this  article ;  and  when 


INDIANA.  211 

any  such  will  or  testament  is  burnt,  torn,  cancelled,  or  oblit- 
erated by  any  other  person  than  the  testator  himself,  the  di- 
rection and  consent  of  such  testator,  and  the  fact  of  such 
injury  or  destruction,  shall  be  proved  by  at  least  two  wit- 
nesses. If  after  the  making  of  any  will,  the  testator  shall 
duly  make  out  and  execute  a  second  will,  the  cancelling  or 
revocation  of  such  second  will  shall  not  revive  the  first  will, 
unless  it  appear  by  the  terms  of  such  revocation,  that  it  was 
his  intent  ion  to  revive  and  give  effect  to  his  first  will;  or 
unless  after  such  cancel! ins:,  destruction,  or  revocation,  he 
shall  duly  republish  the  previous  will."*  [Id.,  Sec.  30.] 

XI.    THE  PROBATE  AND  RECORDING  OF  WILLS  IN  INDIANA. 

In  each  organized  county  in  Indiana  there  is  a  Probate 
Court  consisting  of  one  Judge  elected  by  the  people  for  the 
term  of  seven  years,  the  Clerk  of  the  Circuit  who  is  ex-ofncio 
Clerk  of  Probates,  and  the  Sheriff  who  is  its  executive  officer. 
This  Court  has  a  seal,  and  has  original  and  exclusive  juris- 
diction over  all  matters  relating  to  the  probate  of  last  wills 
and  testaments^granting  of  letters  testamentary,  of  adminis- 
tration and  of  guardianship.  [II.  S.,  655,  Sec.  5.]  "  Upon 
the  death  of  a  testator,  any  executor,  devisee  or  legatee  named 
in  his  will,  may  have  sudi  will  proved  before  the  proper  Pro- 
bate Court,  or  before  the  Clerk  of  such  court  when  the  same 
is  not  in  session."  [Id.  492,  Sec.  34.]  "  Proof  of  last  wills 
and  testaments  may  be  taken  by  the  Probate  Court  or  the 
Clerk  of  such  court : 

1.  Where  the  testator  at,  or  immediately  previous  to  his 
death,  was  an  inhabitant  of  such  county,  whether  such  tes- 
tator died  in  such  county  or  not. 

*  It  was  held  that  by  the  Statute  of  this  State,  a  will  devising  real  estate  must  be 
in  writing,  signed  by  the  testator  and  attested  by  two  witnesses,  in  the  presence  of 
the  testator  ;  and  that  it  may  in  the  same  manner  be  revoked.  [2,  Black.,  353.] 

It  is  in  contravention  of  well  settled  principles  to  admit  a  parol  cancelation  of  a 
deed  or  will  in  writing.  [Idem.] 

Unsealed  wills,  codicila  and  revocations  are  valid  in  Indiana.     [Id.,  336.] 


212  THE  PROBATE  AND  RECORDING  OF  WILLS  IN 

2.  Where  the  testator,  not  being  an  inhabitant  of  this  State, 
shall  die  in  such  county,  leaving  assets  therein. 

3.  Where  the  testator  not  being  an  inhabitant  of  this  State, 
shall  die  out  of  the  State,  not  leaving  assets  in  such  county, 
but  assets  of  such  testator  shall  come  into  the  county  there- 
after."    [Id.,  Sec.  35.] 

"  Witnesses  may  be  summoned  by  subpoena,  to  be  issued 
by  the  Clerk  of  the  Probate  Court,  to  appear  and  testify  re- 
specting the  execution,  subscribing  and  attestation  of  such 
will ;"  [Id.,  Sec.  36.]  and  the  person  having  custody  of  the  will 
may  be  cited  to  produce  it,  or  in  default  thereof,  may  be  impris- 
oned for  contempt  of  the  process  of  the  court. 

It  provided  that  "  wills  offered  for  probate  shall  be  proved 
by  one  or  more  of  the  subscribing  witnesses,  or  if  they  be 
dead,  and  or  but  of  the  State,  or  have  become  incompetent 
since  attesting  such  will,  then  by  the  proof  of  the  hand  wri- 
ting of  the  testator,  or  of  at  least  two  of  the  subscribing 
witnesses  thereto ;  and  the  Probate  Court,  or  Clerk  thereof, 
taking  such  proof  shall  inquire  particularly  into  the  facts 
and  circumstances  of  the  execution,  subscribing  and  attesting 
of  such  will,  and  shall  be  satisfied  of  the  genuineness  and 
validity  thereof,  before  admitting  the  same  to  probate,  or 
granting  letters  testamentary,  or  of  administration  with  the 
will  annexed,  thereon."  [Id.,  Sec.  39.] 

"  If  none  of  the  subscribing  witnesses  to  such  will  be  pro- 
duced, their  insanity,  death,  subsequent  incompetency,  or  ab- 
sence from  the  State,  shall  be  satisfactorily  shown  before  proof 
of  the  handwriting  of  the  testator  or  of  any  of  the  subscribing 
witnesses  shall  be  received.  [Id.,  Sec.  40.]  "  Whenever  proof 
of  any  will  is  made  by  proving  the  handwriting  of  the  tes- 
tator, or  of  any  of  the  subscribing  witnesses  thereto,  such 
proof  thereof  shall  be  taken  and  received  as  would  be  proper 
to  prove  the  same  on  a  trial  at  law."  [Id.,  Sec.  40.] 

"  And  if  it  shall  appear  upon  the  proof  taken  that  the  will 
was  duly  executed ;  that  the  testator  at  the  time  of  executing 


INDIANA.  213 

the  same  was  of  full  age  to  devise  his  property,  and  of  sound 
mind  and  memory,  and  not  under  coercion  and  restraint,  the 
said  proofs  and  examinations  are  required  to  be  written  down 
by  said  Clerk,  and  subscribed  by  the  witnesses  examined,  and 
attested  under  his  hand  and  seal  of  office;  and  the  will  and 
said  proofs  and  examination,  with  such  attestation,  to  be  re- 
corded by  said  Clerk  in  a  book  provided  and  kept  for  that  pur- 
pose, and  certified  to  be  a  full  and  true  record."  [Id.,  Sec.  43.] 

Ample  provision  has  been  made  for  the  contestation  of 
wills  by  persons  interested  in  defeating  their  probate,  by  the 
making  of  objections  in  writing,  duly  verified,  alledging  the 
grounds  of  the  opposition  to  be  made.  Whenever  objections 
are  interposed,  the  hearing  may  be  postponed  to  a  subse- 
quent term  and  to  which  the  devisees,  legatees,  trustees,  guar- 
dians, and  all  other  beneficiaries  of  the  will  are  required  to  be 
cited  to  appear.  After  due  examination  and  trial,  it  is  the 
duty  of  the  Court  to  pass  upon  the  validity  of  the  will ;  from 
whose  decision  an  appeal  lies  to  the  Circuit  Court. 

Foreign  wills  affecting  property  in  Indiana  are  also  provi- 
ded for.  Any  will  that  shall  have  been  proved  or  allowed, 
in  any  other  of  the  United  States,  or  in  any  foreign  country 
according  to  the  laws  of  such  State  or  country,  may  be  re- 
ceived and  recorded  in  this  State,  provided  the  same  shall  be 
duly  certified  under  the  seal  of  the  court  or  officer  taking  such 
proof;  or  an  exemplified  copy  thereof,  or  the  record  thereof, 
together  with  the  certificate  of  probate  thereof,  duly  authen- 
ticated under  seal,  is  produced  to  the  Probate  Court  of  the 
county  in  which  there  is  any  real  or  personal  estate  devised  or 
bequeathed ;  and  if  the  court  upon  inspection  be  satisfied 
that  said  will  was  properly  executed,  according  to  the  laws 
of  this  State,  and  proved  according  to  the  laws  of  the  State 
in  which  it  was  executed,  or  according  to  the  laws  of  Indi- 
ana, it  is  his  duty  to  order  the  same  to  be  recorded  by  the 
Clerk.  This  being  done,  the  will  becomes  as  effectual,  as  if  ex- 
ecuted within  the  State  of  Indiana.  [R.  S.,  495,  Sec.  46,  50.] 


214  TITLE  TO  REAL  ESTATE  BY  DESCENT  IN 

XII.  THE  TITLE  TO  REAL  ESTATE  BY  DESCENT  IN  IN- 
DIANA. 

The  title  to  real  estate  in  the  State  of  Indiana,  by  descent, 
is  regulated  by  the  following  provisions  of  the  State,  viz: 

"The  real  estate  of  every  person  dying  intestate  shall  de- 
scend in  the  manner  provided  by,  and  subject  to  the  rules 
and  provisions  of,  this  article. 

1.  When  any  intestate  shall  die,  leaving  children,  and  none 
of  the  children  of  such  intestate  shall  have  died,  leaving  de- 
scendants, such  estate  shall  descend  to  the  children  of  such 
intestate  in  being  at  the  time  of  his  death  in  equal  proportions. 

2.  The  law  of  descent  as  presented  in  the  above  first  rule, 
shall  apply  in  every  case  in  which  there  are  several  descend- 
ants in  the  direct  line  of  lineal  descent,  and  all  of  equal  de- 
gree of  consanguinity  to  such  intestate,  whether  children, 
grand  children  or  great  grand  children,  or  more  remote  de- 
scendants of  such  intestate;  so  that  the  inheritance  shall  .de- 
scend to  such  persons  of  equal  degree  of  consanguinity  to 
the  intestate  in  equal  parts,  however  remote  from  the  intes- 
tate such  equal  and  common  consanguinity  may  be. 

3.  If  any  of  the  children  of  such  intestate  be  living,  and 
any  be  dead,  the  inheritance  shall  descend  to  the  children  of 
such  intestate  who  are  living,  and  to  the  descendants  of  such 
of  his  children  as  shall  have  died,  so  that  such  child  of  the 
intestate  who  shall  be  living,  shall  inherit  the  share  which 
would  have  descended  to  him,  if  all  the  children  of  the  in- 
testate, who  shall  have  died  leaving  descendants,  had  been 
living,  and  so  that  the  descendants  of  each  deceased  child 
of  the  intestate  shall  inherit  the  share  which  their  parents 
would  have  received  if  living. 

4.  The  rule  of  descent,  as  prescribed  in  the  above  third 
rule,  shall  apply  in  all  cases  in  which  the  descendants  of  the 
intestate  entitled  to  share  in  the  estate  are  of  unequal  degree 
of  consanguinity  to  the  intestate ;  so  that  those  who  are  of 


INDIANA.  215 

the  nearest  degree  of  consanguinity  shall  take  the  shares 
which  would  have  descended  to  them  had  all  the  descend- 
ants in  the  same  degree  of  consanguinity  with  themselves, 
who  shall  have  died  leaving  issue,  been  living  ;  and  so  that 
the  issue  of  the  descendants  who  shall  have  died,  shall  re- 
spectively take  the  shares  which  their  parents,  if  living, 
would  have  received."  [R.  S.,  433,  Sec.  109.] 

"In  case  the  intestate  shall  die  without  children,  or  their 
descendants  to  take  the  inheritance,  his  estate  shall  go  to  his 
kindred  in  the  direct  ascending  line  of  consanguinity,  and  to 
his  collateral  relations  as  specified  in  the  following  sections 
of  this  article,  subject  to  the  provisions  made  in  favor  of  the 
widow  of  such  intestate;  the  inheritance,  in  all  such  cases, 
being  governed  by  the  rules  of  descent  hereinafter  establish- 
ed in  this  article."  [Id.,  Sec.  110.] 

"  If  the  intestate  shall  die  without  children,  or  their  de- 
scendants, and  leaving  a  father  and  mother,  or  either  of  them, 
and  brothers  and  sisters,  or  the  descendants  of  any  brother 
or  sister,  or  leaving  any  of  such  relatives,  the  inheritance 
shall  descend  as  follows  : 

1.  If  there  be  a  father  and  mother,  or  either  of  them,  and 
brothers  and  sisters,  and  the  descendants  of  any  brother  or 
sister  who  shall  have  died,  or  the  descendants  of  any  or  all 
such  brothers  or  sisters,  all  the  brothers  and  sisters  being 
dead,  one-half  of  the  inheritance  shall   go  to  the  father  and 
mother,  as  joint  tenants,  or  if  either  be  dead,  then  to  the  one 
who  shall  be  living ;  and  the  other  half  of  such  inheritance 
shall  go  to  the  said  brothers  and  sisters,  or  to  such  as  shall  be 
living,  and  the  descendants  of  such  as  shall  be  dead ;  and  if 
all  such  brothers   and   sisters  be  dead,  then  to   their  de- 
scendants. 

2.  If  there  be  neither  brothers  nor  sisters  of  the  intestate, 
nor  the  descendants  of  any  such  brother  or  sister,  and  the 
father  and  mother  of  such  intestate  be  living,  the  whole  of 
the  inheritance  shall  go  to  such  father  and  mother,  as  joint 


216  TITLE  TO  REAL  ESTATE  BY  DESCENT  IN 

tenants ;  if  the  father  only  be  living,  he  shall  take  the  in- 
heritance, unless  the  estate  came  to  the  intestate  on  the  part 
of  the  mother ;  if  the  father  be  dead  or  incapable  of  inherit- 
ing the  estate,  it  shall  go  to  the  mother  of  the  intestate. 

3.  If  there  be  neither  father  nor  mother  of  such  intestate, 
and  there  be  brothers  and  sisters  of  such  intestate,  or  broth- 
ers and  sisters  and  the  descendants  of  any  brother  or  sister 
who  shall  have  died,  or  only  the  descendants  of  brothers  and 
sisters ;  then,  the  whole  of  such  inheritance  shall  go  to  such 
brothers  and  sisters,  and  to  the  descendants  of  them,  accord- 
ing to  the  rules  of  descent  hereinafter,  in  this  article."  [R. 
S., .434,  Sec.  111.] 

"  If  there  be  no  descendants  nor  relatives  entitled  to  take 
the  inheritance  according  to  the  preceding  sections  of  this 
article,  such  inheritance  (subject  to  the  provisions  hereinafter 
made  in  favor  of  the  widow  of  the  intestate)  shall  descend 
as  follows : 

1.  If  the  inheritance  came  to  the  intestate  on  the  part  of 
his  father,  it  shall  go  to  the  paternal  grandfather  and  grand- 
mother, as  joint  tenants;  or  if  one  of  them  be  dead,  then  to 
the  survivor. 

2.  If  there  be  no  grandfather  nor  grandmother,  as  above 
specified,  to  take  the  inheritance,  the  same  shall  descend  to 
the  brothers  and  sisters  of  the  father  of  the  intestate,  or  to 
such  as  shall  be  living,  and  the  descendants  of  such  as  shall 
be  dead ;  or  if  all  the  brothers  and  sisters  be  dead,  then  to 
their  descendants. 

3.  If  there  be  no  descendants  of  such  brothers  and  sisters 
of  the  intestate  father,  rior  other  heirs  entitled  to  take  accord- 
ing to  the  preceding  provisions  of  this  section,  the  inheritance 
shall  then  go  to  the  nearest  of  kin,  of  equal  degree  of  con- 
sanguinity to  the  intestate,  among  the  paternal  kindred. 

4.  If  there  shall  be  no  heirs  entitled  to  take  the  inheritance 
as  above  provided,  the  same  shall  descend  to  the  natural  kin- 
dred in  like  manner,  and  be  subject  to  the  same  law  of  de- 


INDIANA.  217 

scent,  in  all  respects,  as  if  such  maternal  kindred  had  been 
the  paternal  kindred  of  the  intestate,  as  in  this  section  before 
provided. 

5.  Whenever  the  inheritance  shall  have  come  to  the  intes- 
tate on  the  part  of  his  mother,  the  same  shall  go  to  the  ma- 
ternal grandfather  and  grandmother  of  the  intestate,  as  joint 
tenants,  or  to  the  survivor  of  them;  or  if  neither  be  alive, 
then  to  the  brothers  and  sisters  of  the  intestate's  mother,  and 
to  their  descendants ;  or  if  there  be  no  such  brothers  or  sis- 
ters, nor  the  descendants  of  any  of  them  living,  then  to  the 
nearest  of  kin,  of  equal  degree  of  consanguinity  to  the  intes- 
tate, among  the  maternal  kindred ;  and  such  inheritance  shall 
descend  in  like  manner  to  the  maternal  kindred,  and  be  gov- 
erned in  all  respects  by  the  law  of  descents,  as  prescribed 
herein,  as  if  the  said  maternal  kindred  were  the  paternal  kin- 
dred of  such  intestate. 

6.  If  there  shall  be  no  maternal  relatives  to  take  the  inher- 
itance coming  to  the  intestate  on  the  part  of  his  mother,  ac- 
cording to  the  provisions  of  this  section,  then  such  inheritance 
shall  descend  to  the  paternal  kindred  of  the  intestate  in  like 
manner,  and  be  subject  to  the  same  law  of  descent,  in  all 
respects,  as  if  said  paternal  kindred  were  the  maternal  kindred 
of  said  intestate,  as  in  the  section  above  specified."     [R.  S., 
435,  Sec.  112.] 

"  Whenever  the  inheritance  shall  not  have  come  to  the 
intestate  on  the  part  of  the  father  or  mother,  and  there 
shall  not  be  any  children,  or  their  descendants,  of  such  in- 
testate, nor  any  father,  mother,  or  brothers  and  sisters,  or  the 
descendants  of  any  such  brother  or  sister  of  such  intestate, 
such  inheritance  shall  descend  as  follows : 

1.  One-half  of  the  said  inheritance  shall  go  to  the  pater- 
nal grandfather  and  grandmother  of  such  intestate,  as  joint 
tenants ;  or  if  one  shall  have  died,  then  to  the  survivor. 

2.  If  there  shall  be  neither  paternal  grandfather  nor  grand-^ 

mother  living,  such  half  of  the  inheritance  shall  go  to  the 
10 


218  STATUTE  OF  DESCENTS  IN 

brothers  and  sisters  of  the  father  of  the  intestate,  and  to  the 
descendants  of  any  of  them  who  shall  have  died  ;  or  if  all 
such  brothers  and  sisters  shall  have  died,  any  or  all  of  them 
leaving  descendants,  then  to  such  descendants. 

3.  If  there  be  no  relatives  of  the  intestate  entitled  to  the 
inheritance,  as  above  provided  in  this  section,  then  such  half 
of  said  inheritance  shall  go  to  the  nearest  of  kin,  in  equal 
degree  of  consanguinity  to  such  intestate,  among  his  paternal 
kind  red. 

4.  If  there  be  no  paternal  kindred  entitled  to  such  part  of 
the  inheritance  as  above  specified,  the  same  shall  descend  to 
the  widow  of  the  intestate,  if  living ;  or  if  there  be  no  widow, 
then  to  the  maternal  kindred  of  such  intestate  in  like  manner, 
and  governed  in  all  respects  as  if  such  maternal  kindred  had 
been  of  the  paternal  kindred  of  such  intestate. 

5.  The  other  half  of  such  inheritance,  as  above  in  this 
section  specified,  shall  go  to  the  maternal  kindred  of  the  intes- 
tate, in  like  manner  as  in  this  section  provided  for  the  half  of 
such  inheritance  which  goes  to  the  paternal  kindred,  and 
shall,  in  all  respects,  be  governed  by  the  same  rules  of  de- 
scent among  such  maternal  kindred  as  if  they  had  been  the 
paternal  kindred  of  the  intestate  as  aforesaid. 

6.  If  there  be  no  maternal  kindred  entitled  to  such  remain- 
ing half  of  the  inheritance,  the  same  shall  descend  to  the 
widow  of  the  intestate,  if  living,  or  if  there  be  no  widow, 
then  to  the  paternal  kindred  of  the  intestate,  in  like  manner, 
and  governed  in  all  respects  as  if  such  paternal  kindred  had 
been  of  the  maternal  kindred  of  the  intestate."     [R.  S.,  435, 
Sec.  113.] 

"  In  all  cases  in  which  the  inheritance  shall  descend,  in 
whole  or  in  part,  to  the  collateral  relatives  of  the  intestate 
and  their  descendants,  as  specified  in  this  article,  such  rela- 
tives shall  share  the  inheritance  as  follows  : 

1.  If  there  be  several  relatives,  all  of  equal  degree  of  con- 
sanguinity to  the  intestate,  such  inheritance  shall  descend  to 


INDIANA.  219 

them  in  equal  parts,  however  remote  from  the  intestate  such 
equal  and  common  degree  of  consanguinity  may  be. 

2.  If  the  relatives  entitled  to  the  inheritance  be  of  unequal 
degree  of  consanguinity  to  the  intestate,  such  inheritance 
shall  so  descend  that  those  of  the  nearest  degree  of  consan- 
guinity to  such  intestate  shall  take  the  shares  that  would 
have  descended  to  them  if  all  the  relatives  of  the  same  de- 
gree of  consanguinity  to  such  intestate  who  shall  have  died 
leaving  descendants,  were  living ;  and  so  that  the  descendants 
of  such  deceased  relatives  shall  inherit  the  shares  which 
their  parents,  if  living,  would  have  received. 

3.  Whenever  the  inheritance  is  in  any  case  directed  to  go 
to  the  nearest  of  kin  in  equal  degree  of  consanguinity  to  the 
intestate,  and   there  are  two  or  more  collateral  kindred,  in 
equal  degree,  but  claiming  through  different  ancestors,  those 
who  claim  through  the  ancestor  nearest  to  the  intestate  shall 
be  preferred  to  those  claiming  through  an  ancestor  who  is 
more  remote. 

4.  Kindred  of  the  half  blood,  and  their  descendants,  shall 
inherit  equally  with  those  of  the  whole  blood  in  equal  de- 
gree of  consanguinity  to  the  intestate;  unless  the  inheritance 
shall  have  come  to  the  intestate  by  descent,  devise,  or  gift  of 
some  of  his  ancestors  ;  in  which  case  such  kindred  of  the 
half  blood  and  their  descendants  shall  not  inherit,  except 
they  also  be  of  the  blood  of  such  ancestor ;  but  if  in  any 
such  case  there  be  no  relatives  of  the  whole  blood,  in  equal 
or  nearer  degree  of  consanguinity  to  such  intestate,  nor  their 
descendants,  entitled  to  take  such  inheritance  according  to 
the  provisions  of  this  article,  then  such  kindred  of  the  intes- 
tate, of  the  half  blood,  and  their  descendants,  shall  take  the 
same  as  if  they  were  of  the  whole  blood. 

5.  Whenever  the  inheritance  shall  have  come  to  the  intes- 
tate by  gift,  or  by  virtue  of  any  conveyance  in  consideration 
of  natural  love  and  affection,  from  any  person  living  at  the 
death  of  such  intestate,  such  inheritance,  shall  descend  to 


220  STATUTE  OF  DESCENTS  IN 

such  person,  if  the  intestate  shall  have  died  without  leaving 
any  children  or  their  descendants."  [R.  S.,  436,  Sec.  114.] 

"  When  in  any  case  specified  in  the  last  clause  of  the  last 
preceding  section,  the  husband  or  wife  of  any  person  to 
whom  any  such  estate  may  have  been  given  or  conveyed, 
shall  have  made  valuable  and  lasting  improvements  thereon, 
or  the  separate  estate  or  moneys  of  such  husband  or  wife 
shall  have  been  applied  to  the  making  of  such  improvements, 
such  husband  or  wife,  as  the  case  may  be,  when  such  estate 
shall  descend  to  the  grantor  or  donor  thereof,  as  provided  in 
the  said  last  clause,  shall  hold  a  lien  thereon  for  the  payment 
of  such  improvements,  or  for  reimbursement  for  his  or  her 
moneys  invested  therein,  deducting  therefrom  the  value  of 
the  use  and  enjoyment  of  such  premises  by  the  person  in 
whose  favor  such  lien  is  declared."  [Id.,  436,  Sec.  115.] 

'•  Such  husband  or  wife  may  file  a  bill  in  chancery  against 
the  person  to  whom  such  estate  is  above  directed  to  descend  ; 
and  the  court  may  decree  the  payment  or  reimbursement  out 
of  such  premises  or  otherwise,  to  such  husband  or  wife,  of 
the  value  of  such  improvements,  or  the  sums  of  money  in- 
vested therein  ;  and  no  conveyance  of  such  premises  or  in- 
cumbrance  made  thereon  by  the  person  aforesaid,  shall  in 
any  way  affect  or  defeat  the  lien  of  such  husband  or  wife." 
[Id.,  437,  Sec.  116.]  * 

"The  widow  of  the  intestate  may,  if  she  choose,  take  as  an 
heir  of  her  husband,  to  the  extent  and  in  the  cases  specified 
in  this  section,  as  follows : 

1.  If  the  heirs  entitled  to  take  such  inheritance  shall  be 
the  grandfather  and  the  grandmother  of  the  intestate,  or 
either  of  them,  or  the  brothers  and  sisters  of  the  father  or 
mother  of  the  intestate,  or  the  descendants  of  any  such 
brother  or  sister,  the  widow  may,  in  any  such  case,  take  one- 
third  part  of  such  inheritance,  as  an  heir  of  the  intestate. 

2.  If  the  only  heirs  entitled  to  take  the  inheritance  shall 
be  such  as  are  included  within  any  of  the  provisions  of  this 


INDIANA.  221 

article,  by  virtue  of  which  they  take  as  being  designated  to 
be  nearest  of  kin  in  equal  degree  of  consanguinity  to  the  in- 
testate, the  widow  of  the  intestate  may,  in  any  such  case, 
take  one  equal  half  of  such  inheritance,  as  an  heir  of  the 
intestate. 

3.  If  there  be  no  heirs  of  the  intestate  entitled  to  take  such 
inheritance,  as  prescribed  in  this  article,  such  widow  may 
take  the  whole  thereof,  as  the  heir  of  said  intestate."  [R.  S., 
438,  Sec.  117.] 

"Whenever  the  widow  of  the  intestate  shall  take  as  heir, 
as  above  specified,  any  part  of  such  inheritance,  the  remain- 
ing part  thereof,  if  any.  shall  go  to  the  lawful  heirs  of  the 
intestate,  entitled  thereto,  in  like  manner  as  if  such  remain- 
ing part  were  the  whole  of  such  inheritance."  [Id.,  437, 
Sec.  118.] 

"  Whenever  the  widow  shall  take  as  heir  of  the  intestate, 
she  shall  not  be  endowed  of  the  residue  of  such  inheritance  ; 
but  instead  of  taking  as  such  heir,  she  may  elect  to  take  her 
dower  in  such  estate ;  in  which  case  she  shall  not  take  any 
part  thereof  as  such  heir."  [Id.,  437,  Sec.  119.] 

"  Such  widow  shall  be  presumed  to  have  elected  to  take  her 
dower  in  such  inheritance,  unless,  within  one  year  after  the 
death  of  such  intestate  shall  be  known  to  her,  she  shall  have 
declared  her  intention,  in  writing,  filed  in  the  Clerk's  office 
of  the  Probate  Court  of  the  county  in  which  such  inherit- 
ance may  be  situated,  to  take  as  the  heir  as  aforesaid  of  such 
intestate."  [Id.,  437,  Sec.  120.] 

"  If  she  take  as  heir,  she  shall  take  such  inheritance,  sub- 
ject to  the  debts,  liabilities,  liens,  and  judgments  against  the 
intestate  and  his  estate,  and  the  costs  and  charges  of  admin- 
istration thereof,  as  other  heirs  in  like  cases."  [Id.,  437,  Sec. 
121.] 

"  Every  illegitimate  child  shall  be  considered  as  an  heir  of  h  is 
mother,  and  shall  inherit  her  estate,  in  whole  or  in  part,  as 


STATUTE  OF  DESCENTS  IN 

the  case  may  be,  in  like  manner  as  if  he  had  been  born  in 
lawful  wedlock."  [Id.,  438,  Sec.  122.] 

"  If  any  man  shall  marry  a  woman  who  has,  previous  to 
the  marriage,  borne  any  illegitimate  child,  and  after  mar- 
riage shall  acknowledge  such  child  as  his  own,  such  child 
shall  be  deemed  legitimate  to  all  intents  and  purposes."  [Id., 
438,  Sec.  123.] 

"  If  any  illegitimate  child  shall  die  intestate,  without  having 
been  acknowledged,  as  provided  in  the  last  preceding  sec- 
tion, and  without  descendants  lawfully  entitled  to  inherit  his 
estate,  the  same  shall  descend  to  his  mother ;  or  if  she  be 
dead,  it  shall  descend  to  the  children,  or  their  descendants, 
of  such  mother ;  and  if  there  be  no  such  children  nor  their 
descendants,  then  to  the  other  relatives  of  the  intestate,  on 
the  part  of  the  mother,  as  if  such  intestate  had  been  legiti- 
mate." [Id.,  438,  Sec.  124.] 

If  any  person,  dying  intestate,  shall  leave  no  heirs  or  kin- 
dred entitled  to  the  inheritance  according  to  the  provisions 
of  this  article,  his  estate  shall  escheat  to  the  State  of  Indiana, 
to  be  applied  exclusively  to  the  support  of  Common  Schools 
of  the  several  townships  of  the  county  or  counties  in  which 
such  .estate  may  be  situated,  in  such  manner  as  may  be  di- 
rected by  law."  [Id.,  438,  Sec.  125.] 

"  The  estate  of  a  husband,  as  a  tenant  by  the  courtesy,  or  of 
a  widow  as  tenant  in  dower,  shall  not  be  affected  by  any  of 
the  provisions  of  this  article,  except  the  widow's  right  to  dow- 
er, when  she  shall  succeed  to  the  whole  or  any  part  of  the 
inheritance,  as  the  heir  of  her  husband  ;  nor  shall  the  same 
affect  the  limitation  of  any  estate  by  deed  or  will."  [Id.,  438, 
Sec.  126.] 

"  No  person  who  is  himself  a  citizen,  or  capable  of  inherit- 
ing, shall  be  precluded  from  the  inheritance  by  reason  of  the 
alienism  of  any  of  his  ancestors."  [Id.,  438,  Sec.  127.] 

"  Descendants  and  relatives  of  the  intestate  begotten  before. 


INDIANA.  223 

his  death,  but  born  thereafter,  shall  in  all  cases  inherit  in  the 
same  manner  as  if  they  had  been  born  in  the  life  time  of  the 
intestate,  and  had  survived  him.  [Id.,  438,  Sec.  128.] 

The  degrees  of  kindred  shall  be  computed  according  to 
the  rules  of  the  civil  law.  [Id.,  438,  Sec.  129.] 

XIII.  THE  LEVY  AND  COLLECTION  OF  TAXES  ON  LANDS 
IN  INDIANA. 

All  lands  in  the  State  are  subject  to  taxation,  except  such 
as  belong  to  the  State,  and  to  the  United  States,  or  have  been 
sold  by  the  United  States  within  five  years  next  preceding 
the  levy ;  school  houses,  court  houses,  jails,  and  lands  where- 
on county  buildings  are  situate ;  churches  and  church 
grounds,  not  exceeding  ten  acres ;  grave  yards,  not  exceed- 
ing ten  acres  ;  buildings  erected  for  the  use  of  any  literary 
benevolent,  charitable,  or  scientific  institution,  and  lands  not 
exceeding  twenty  acres  ;  lands  granted  for  the  use  of  schools, 
until  sold;  and  lands  reserved  to  or  for  any  individual  by 
any  treaty  between  the  United  States  and  any  Indian  tribe. 
[R.  S.,  208,  Sec.  1  to  9.] 

That  the  reader  may  easily  apprehend  the  mode  of  levying 
and  collecting  taxes  in  this  State,  he  should  be  informed  of 
the  existence  in  the  counties  respectively  of  a  board  of  Coun- 
ty Commissioners,  a  County  Auditor,  and  a  County  Asses- 
sor. These  officers  are  elected  by  the  people.  The  Commis- 
sioners hold  their  offices  three,  the  Auditor  five,  and  the  As- 
sessor two  years,  and  until  successors  are  qualified.  Between 
the  first  day  of  March,  and  the  twenty-fifth  day  of  May,  in 
each  year,  the  County  Assessors,  after  having  been  furnished 
by  the  Auditors  of  the  counties  respectively  with  a  copy  of 
the  assessment  roll  of  the  preceding  year,  are  required  "  to 
ascertain  by  diligent  inquiry,  the  names  of  all  the  taxable 
inhabitants  of  their  respective  counties,  and  also  all  the  tax- 
able property,  real  and  personal,  within  the  same.  [R.  S., 
212,  Sec.  28.] 


224  LAND  TAXES  IN 

For  this  purpose,  it  is  his  duty  to  "call  upon  each  and 
every  person  resident  in  his  county,  for  a  list  of  all  their 
real  and  personal  property  liable  to  taxation,  and  not  already 
entered  on  his  list  and  valued ;  and  for  a  statement  of  all 
changes  made  in  their  real  estate,  and  improvements  made 
thereon,  or  destruction  or  removal  of  the  same  since  the  last 
appraisement,  and  shall  make  a  true  valuation  of  the  same." 
[Id.,  Sec.  34.] 

"  If  the  owner  of  any  property  liable  to  taxation  shall  be 
unknown,  or  a  non-resident,  or  absent,  or  unable  to  give  in  a 
list  when  called  upon  by  the  Assessor,  it  shall  be  the  duty  of 
the  Assessor  to  make  a  list  thereof  from  the  best  information 
he  can  obtain."  [Id.,  Sec.  36.] 

Each  Assessor,  after  having  completed  his  list,  is  required 
to  deliver  the  same  to  the  County  Auditor  of  his  county,  on 
or  before  the  first  day  of  June,  then  next  ensuing  ;  on  which 
day  the  board  of  County  Commissioners,  the  Auditor  and 
Assessor,  are  required  to  meet  at  the  seat  of  justice  of  each 
county,  and  form  themselves  into  a  Board  of  Equalization. 

Upon  being  thus  organized,  such  Board  has  power  to  hear 
and  determine  the  complaint  of  any  owner  of  property  listed, 
respecting  the  same,  and  the  valuation  thereof,  made  subse- 
quently to  the  preceding  March,  and  to  correct  such  valua- 
tion as  to  the  Board  may  seem  proper;  and  the  said  Board 
also  has  power  to  equalize  the  valuation  made  by  the  Asses- 
sor, either  by  adding  to,  or  deducting  from,  his  valuation,  such 
sums  as  to  them,  or  a  majority  of  them,  shall  appear  just  and 
equitable.  [Id.,  Sec.  42.] 

It  is  the  duty  of  the  Board  to  determine  the  amount  of  tax 
to  be  levied  for  county  purposes,  and  to  subjoin  to  it  the 
amount  of  State  tax  fixed  by  law,  or  specially  charged  upon 
the  county,  and  to  order  a  levy  thereof  accordingly.  Where- 
upon a  tax  list  is  prepared  and  furnished  on  or  before  the 
fifteenth  day  of  August  ensuing,  to  the  County  Treasurer,  who; 
immediately  upon  receiving  it,  is  required  to  proceed  to  the 


INDIANA.  225 

collection  thereof;  and  for  that  purpose,  and  before  the  first 
day  of  the  ensuing  October,  he  is  required  to  attend  at  the 
place  of  holding  annual  elections  in  each  township  for  the 
space  of  one  day,  and  as  much  longer  as  the  Board  of  Coun- 
ty Commissioners  shall  have  directed,  and  after  the  first 
day  of  October,  until  the  first  day  of  December  following, 
at  the  seat  of  justice  of  his  county.  He  is  also  required  to 
post  notices  of  the  per  ccntage  of  the  tax,  and  the  time  and 
place  that  he  will  attend  for  its  collection,  and  to  publish  the 
same  in  some  newspaper  having  general  circulation  in  his 
county  (if  any  there  be)  for  six  successive  weeks.  [Id.,  Sec. 
55.] 

"  In  case  any  person  shall  refuse  or  neglect  to  pay  the  tax 
imposed  on  him,  the  County  Treasurer  shall,  after  the  first 
day  of  December,  levy  the  same,  together  with  five  per  cent 
damages,  and  the  costs  and  charges  that  may  accrue,  by  dis- 
tress and  sale  of  the  goods  and  chattels  of  such  person  as 
ought  to  pay  the  same,  wheresoever  the  same  may  be  found 
within  the  county."  [Id.,  Sec.  56.] 

"  The  Treasurer  shall  give  public  notice  of  the  time  and 
place  of  sale,  and  of  the  property  to  be  sold,  at  least  ten  days 
previous  to  the  day  of  sale,  by  advertisements,  to  be  posted 
up  in  at  least  three  public  places  in  the  township  where  such 
sale  shall  be  made."  [Id.,  Sec.  58.] 

Taxes  on  real  estate  are  a  lien  which  attaches  on  the 
first  day  of  March  annually,  and  if  taxes  thereon  are  not 
paid,  the  lien  being  perpetual,  the  lands  delinquent  are  re- 
quired to  be  returned  as  such,  to  the  County  Auditor,  on  the 
second  Monday  of  the  ensuing  January ;  and  after  the  list 
has  been  certified  by  the  County  Auditor,  to  forward  the 
same  to  the  Auditor  of  the  State.  Yet  taxes  may  be  paid 
into  the  county  treasury  at  any  time,  and  into  the  State 
treasury  at  any  time  after  the  return  of  the  delinquent  list 
to  the  Auditor  of  the  State,  until  the  third  Monday  of  Sep- 
tember annually ;  but  the  penalty,  interest  and  costs  thereon 


226  REDEMPTIONS  IN 

must  also  be  paid  in  at  the  time  of  paying  the  taxes.  [Id., 
Sec.  83.] 

The  penalty  is  ten  per  cent,  interest  six  per  cent,  and  the 
costs  dependent  upon  the  circumstances  of  the  case.  If 
payment  be  made  into  the  county  treasury,  the  person  pay- 
ing is  required  to  file  the  Treasurer's  receipt  with  the  County 
Auditor,  arid  take  his  receipt  in  place  thereof.  And  in  case 
of  payment  into  the  State  treasury,  the  person  paying  is 
required  to  file  the  Treasurer's  receipt  with  the  Auditor  of 
the  State,  and  to  take  his  receipt  therefor,  which  he  is  required 
to  file  in  the  proper  county ;  and  a  sale  before  the  filing  of 
the  receipt  is  valid.  If,  however,  proceedings  for  a  sale 
shall  have  been  commenced  before  the  filing,  upon  filing  the 
receipt  and  payment  of  costs  and  charges,  the  proceedings 
may  be  stayed.  [R.  S.,  223,  Sec.  86.] 

Such  in  brief  is  the  modus  operandi  for  the  levy  and  col- 
lection of  taxes  in  Indiana.  The  penalty  of  omission  or 
neglect  to  pay  land  taxes  forms  the  subject  matter  of  the 
following  article. 

XIV.  LAND  TAX  FORFEITURES  AND  REDEMPTIONS  IN 
IN  INDIANA. 

No  topic,  within  the  scope  of  the  present  work,  elicits 
more  concern  on  the  part  of  land  owners,  mortgagees  and 
judgment  creditors,  than  that  which  relates  to  land  tax  for- 
feitures and  redemptions  in  a  foreign  State.  The  number 
of  this  class  residing  in  the  eastern  and  midland  States  being 
immense,  and  no  means  of  information  upon  this  point  being 
at  their  ready  command,  losses  and  disappointments  from 
this  cause  have  been  frequent  and  severe. 

Non-residents  of  this  State  are  informed  that  "on  the  first 
day  of  October  annually,  the  County  Auditor  is  required  to 
make  out  and  record  in  a  book  to  be  provided  for  that  pur- 
pose, a  list  of  all  lands  returned  and  remaining  delinquent 
for  taxes,  charging  them  with  a  penalty  of  ten  per  centum, 


INDIANA.  227 

and  also  with  the  taxes  of  the  current  year ;  to  prepare  a 
list  thereof  and  publish  the  same  at  least  four  weeks  succes- 
sively in  some  newspaper  having  general  circulation  in  his 
county,  with  a  notice  thereto  appended  of  the  time  and  place 
of  sale  ;  and  that  on  the  first  Monday  in  January  thereafter, 
at  the  court  house  in  the  county,  the  Treasurer  will  sell  the 
same  at  public  auction  to  the  bidder  who  will  pay  the  taxes 
for  the  least  quantity  of  land.  [R.  S.,  224,  Sec.  90,  91,  92, 
93.] 

Such  sale  the  Treasurer  is  required  at  that  time  to  com- 
mence, and  to  continue  from  day  to  day  until  so  much  of 
each  parcel  assessed  shall  be  sold  as  will  pay  the  taxes,  in- 
terest, and  charges  thereon. 

"  When  less  than  the  whole  of  any  tract  is  sold,  the  quan- 
tity sold  shall  be  taken  off  and  laid  out  in  a  square  form,  as 
near  as  practicable  at  the  most  northwesterly  corner  of  the 
tract ;  and  when  less  than  the  whole  of  any  inlot  or  outlet 
shall  be  sold,  the  part  sold  shall  be  taken  off  and  laid  off,  so 
that  it  shall  extend  from  the  main  or  principal  street,  road,  or 
alley,  forming  the  most  convenient  front  to  such  lot,  to  the 
rear  of  such  lot,  and  to  bound  the  same  by  lines,  as  nearly 
parallel,  with  the  outlines  of  such  lot  as  practicable."  [Id., 
Sec.  95.] 

The  purchasers  at  such  sale  shall  immediately  pay  the 
amount  of  their  respective  bids  to  the  Treasurer ;  or  on  their 
failure  to  do  so,  the  land  shall  be  again  forthwith  offered  for 
sale,  the  same  as  if  no  sale  had  been  made ;  and  the  pur- 
chaser so  failing  shall  forfeit  and  pay  for  the  use  of  the  com- 
mon school  fund  of  the  county  a  penalty  of  twenty-five  per 
centum  on  the  amount  of  their  bids,  to  be  recovered  by  ac- 
tion of  debt,  in  the  name  of  the  Treasurer,  before  any  Jus- 
tice of  the  Peace  or  Court  having  jurisdiction  -thereof."  [Id., 
Sec.  96.] 

"  After  payment  shall  have  been  made,  the  County  Au- 


228  REDEMPTIONS  IN 

ditor  (whose  duty  it  is  to  attend  as  Clerk  of  Sales,)  shall 
give  to  the  purchaser  a  certificate  in  writing,  describing  the 
land  so  purchased,  the  sum  paid,  and  the  time  when  the  pur- 
chaser will  be  entitled  to  a  deed ;  which  certificate  shall  en- 
title the  holder  to  the  possession  of  the  premises  therein  de- 
scribed." [Id.,  Sec.  98.] 

Such  certificate  is  assignable,  by  statute,  from  one  person 
to  another,  yet  no  assignment  thereof  will  be  held  as  valid, 
unless  its  execution  shall  be  duly  acknowledged  and  record- 
ed in  the  office  of  the  County  Auditor. 

The  sale  divests  the  original  owner  of  his  title ;  yet  two 
years  from  the  day  of  sale  are  allowed  for  redemption.  Any 
person  may  redeem,  but  the  redemption  is  subject  to  con- 
ditions. He  who  redeems  must  pay  to  the  County  Treasur- 
er for  the  use  of  the  purchaser,  his  heirs,  or  assigns,  the 
sum  mentioned  in  his  certificate,  the  amount  of  all  subsequent 
taxes  paid,  with  fifty  per  centum  on  the  whole  sum,  and  in- 
terest from  the  date  of  purchase,  or  from  the  time  of  pay- 
ment. And  in  case  any  "  lasting  and  valuable  improve- 
ments" shall  have  been  made  by  the  purchaser,  at  the  tax 
sale,  or  by  any  person  claiming  under  him,  on  the  land  pro- 
posed to  be  redeemed,  the  person  redeeming  cannot  be  re- 
stored to  possession  until  he  shall  have  paid  or  tendered  to 
the  purchaser  at  the  tax  sale,  or  his  assigns  claiming  the 
improvements,  the  value  thereof.  If  the  parties  cannot  agree 
on  the  value,  the  same  shall  be  determined  by  law.  [Id., 
Sec.  102.] 

But  no  compensation  will  be  allowed  for  improvements 
made  before  the  expiration  of  two  years  from  the  date  of  the 
sale  for  taxes.  Compensation  relates  to  a  class  of  persons 
who  labor  under  a  disability  to  redeem  within  two  years,  and 
against  whom  the  above  limitation  does  not  run.  Infants, 
idiots,  femmes  covert,  and  insane  persons,  are  not  concluded 
by  the  two  years  above  mentioned,  but  have  two  years  from 
the  removal  of  their  disability,  in  which  to  redeem,  and  are 


INDIANA.  229 

frequently  obliged  to  make  compensation  to  the  purchaser, 
or  his  assigns.  [R.  S.,  226,  Sec.  103,  104.] 

Herein  may  be  seen  the  character  of  tax  titles,  as  well  as 
the  rights  of  such  as  labor  under  the  disability  of  infancy, 
idiocy,  coverture,  and  insanity. 

If  there  be  no  redemption  within  two  years  by  any  person, 
the  purchaser,  or  his  legal  representatives,  or  assigns,  may, 
at  the  expiration  of  that  period,  obtain  from  the  Auditor  a 
deed,  which  invests  him  with  all  the  title  acquired  by 
the  forfeiture.  It  is  liable  to  be  defeated  by  the  redemp- 
tion of  the  four  classes  of  persons  above  named,  if  the  orig- 
inal owner  were  of  the  number,  at  any  time  within  two 
years  after  the  removal  of  the  disability.  [Id.,  Sec.  113.] 

"  In  case  the  sales  of  any  land  for  taxes  shall  not  be  ef- 
fected for  want  of  bidders,  the  land  shall  be  considered  as 
forfeited  to  the  State,  to  be  disposed  of  as  the  General  Assem- 
bly shall  hereafter  by  law  direct ;  and  until  so  disposed  of 
or  redeemed,  shall  be  continued  on  the  duplicate,  charged 
with  all  arrearages  for  which  it  was  so  forfeited,  and  interest ; 
and  shall  be  annually  assessed  with  all  accruing  taxes,  pen- 
alties and  interest,  as  other  lands.  [R.  S.,  228,  Sec.  124.] 

"  Such  lands  shall  be  annually  offered  for  sale  with,  and 
on  the  same  terms  as,  other  delinquent  lands ;  and  until  sold 
for  the  amount  of  all  arrearages,  may  be  redeemed  on  pay- 
ment of  the  same  into  the  county  treasury,  by  the  owner  or 
owners  thereof;  and  the  records  made  by  the  County  Au- 
ditors respecting  delinquent  lands,  the  manner  of  advertise- 
ment of  the  sales  thereof,  the  sales  made  of  the  same,  and 
the  conveyances  therefor  executed,  and  all  copies  of  such 
records  duly  certified  to  be  such  by  the  proper  County  Audi- 
tor, under  his  seal  of  office,  shall  be  received  as  prima facia  evi- 
dence of  the  facts  contained  therein."*  [Id.,  229,  Sec.  1*5, 126.] 

*  The  County  Treasurer  may  appoint  deputies,  but  the  principal  is  liable  for  his 
acts.  [2  Blackf.,  227.]  It  has  been  held  that  sales  are  not  invalid  because  or 
by  reason  of  the  land  having  been  assessed  to  the  wrong  person.  [Dewey.] 


230  LIMITATIONS  IN 

XV.     LIMITATION    OF    REAL    ACTIONS    IN    INDIANA. 

No  action  for  the  recovery  of  any  real  estate  sold  on  any 
execution  can  be  brought  by  the  debtor  or  his  heirs,  or  by 
any  person  claiming  under  him  by  virtue  of  any  right,  title, 
or  interest  acquired  from  or  through  the  debtor  after  the  ren- 
dition of  the  judgment  or  decree  under  which  the  sale  was 
made,  unless  brought  within  ten  years  after  the  sale."  [R. 
S.,  456,  Sec.  13.] 

No  action  for  the  recovery  of  any  real  estate  sold  by  any 
executor  or  administrator  under  the  provisions  of  any  statute 
can  be  maintained,  unless  commenced  within  five  years  after 
the  sale ;  nor  can  any  action  be  maintained  by  any  ward, 
for  the  recovery  of  any  real  estate  sold  by  his  or  her  guardian, 
unless  commenced  within  five  years  after  the  termination  of 
the  guardianship."  [Id.,  458,  Sec.  25.] 

The  above  provisions,  however,  are  subject  to  the  excep- 
tion, that  persons  out  of  the  State,  minors,  and  others,  under 
any  legal  disability  to  sue  at  the  time,  when  their  right  of 
action  accrued,  may  commence  actions  at  any  time  within 
five  years  after  returning  to  the  State,  attaining  majority,  or 
removal  of  the  disability.  [Id.,  Sec.  26.] 

"  No  action  of  ejectment  shall  be  commenced  or  maintain- 
ed for  the  recovery  of  any  lands  or  tenements  against  any 
person  or  persons  who  may  have  been  in  the  quiet  and  peace- 
able possession  of  the  same,  under  an  adverse  title,  for  twenty 
years,  either  in  his  own  right,  or  the  right  of  any  other  per- 
son or  persons  under  whom  he  claims ;  and  any  action  of 


If  one  or  two,  or  more  joint  owners  of  lands  shall  pay  the  taxes  upon  the  wholo, 
he  may  sue  for  and  recover  of  the  other,  or  others,  a  contribution.  [Statutes.] 

If  the  Auditor  discover  that  a  sale  is  invalid,  he  should  refund  the  money  to  the 
purchaser,  and  omit  to  give  a  deed.  [Idem.] 

Redemptions  restore  the  owner  to  all  his  original  rights.     [Idem.] 

The  personal  property  of  every  widow  and  orphan  in  Indiana  not  exceeding  two 
hundred  and  fifty  dollars  in  value,  and  the  property  of  all  other  persons  which  by 
law  is  exempt  from  execution,  cannot  be  taxed.  [Idem.] 


INDIANA.  231 

ejectment  commenced  contrary  to  the  provisions  of  this  sec- 
tion shall  be  dismissed,  at  the  cost  of  the  party  instituting 
the  same.  [Id.,  799,  Sec.  44.] 

Married  women,  insane  persons,  minors,  and  persons  out 
of  the  United  States,  however,  are  not  debarred  until  the  ex- 
piration of  five  years  from  the  time  such  disability  shall  be 
removed.  [Id.,  Sec.  45.] 

The  limitation  upon  actions  for  dower  is  twenty  years 
from  the  death  of  the  husband  ;  but  if  at  the  time  of  his  de- 
cease, the  widow  be  under  the  age  of  twenty-one  years,  or 
insane,  the  time  during  which  such  disability  continued 
forms  no  part  of  the  twenty  years.*  [Id.  811,  Sec.  112.] 

XVI.    REAL  ESTATE  EXEMPTIONS  IN  INDIANA. 

The  Revised  Statutes  do  not  exempt  any  real  estate  of  a 
debtor  from  the  operation  of  judgments  or  decrees ;  yet  they 
furnish  some  protection  to  debtors  and  work  out  in  certain 
cases  a  measurable  exemption  of  real  estate.  Whenever  any 
execution  has  been  issued  against  the  lands  of  a  debtor,  he 
may  designate  the  property  that  shall  be  first  levied  upon 
and  sold,  and_  his  principal  messuage  cannot  be  sold  at  all, 
except  with  his  consent,  until  all  his  other  property  subject 
to  taxation,  has  been  exhausted.  [R.  S.,  740,  Sec.  393.J 

It  is  further  provided  that  "no  goods  and  chattels,  or 
lands  and  tenements  of  any  execution  debtor,  shall  be  sold 
on  execution  issued  out  of  any  Court  of  Record,  for  less  than 
two-thirds  of  the  fair  value  thereof,  at  the  time  of  such  sale, 

*  Statutes  of  limitations  are  not  in  violation  of  the  Constitution  of  Indiana;  they 
disturb  no  rights,  but  only  regulate  the  remedy.  [1  Blackf.,  36.] 

Technical  and  continuing  trusts  not  cognizable  at  law,  are  not  barred  by  statutes 
of  limitation.  [Blackf.,  77.] 

Limitations  do  not  begin  to  run  until  the  right  of  action  has  fully  accrued,  and  lias 
become  perfect.  [3  Blackf.,  324.] 

The  limitation  upon  actions  upon  judgments  rendered  before  a  magistrate,  for  ar- 
rears of  rent,  assumpsit,  on  contracts  not  in  writing,  replevin,  waste,  and  trespasses 
on  land,  is  six  years  ;  for  assault  and  battery,  and  for  false  imprisonment,  three  years ; 
upon  statutes  for  penalties,  two  years ;  for  slander  and  libels  one  year,  and  other  ac- 
tions twenty  years.  [R.  S.,  687,  Sec.  101.] 


232  REAL  ESTATE  EXEMPTIONS  IN 

exclusive  of  all  liens,  mortgages  or  incumbrances  thereon." 
[Id.,  757,  Sec.  395.] 

"  For  that  purpose  (to  ascertain  the  value)  two  disinterested 
householders  of  the  neighborhood  where  the  levy  was  made, 
shall  be  selected  as  appraisers,  one  of  whom  shall  be  chosen 
by  the  execution  debtor,  and  the  other  shall  be  chosen  by  the 
plaintiff,  his  agent  or  attorney ;  or  in  the  absence  of  the 
plaintiff,  his  agent  and  attorney,  by  the  officer  executing 
such  writ;  and  said  appraisers  shall  forthwith  proceed  to 
value  such  property  according  to  its  fair  value  at  the  time ; 
and  in  case  of  their  disagreement  as  to  such  value,  they 
shall  choose  a  like  disinterested  householder  of  the  neighbor- 
hood, and  with  his  assistance  they  shall  complete  such  valu- 
ation." [Id.,  Sec.  398.] 

"In  case  such  execution  debtor  shall  fail  to-choose  an  ap- 
praiser within  three  days  after  notice  of  such  levy,  such  offi- 
cer shall  choose  an  appraiser  for  him,  who  shall  proceed  in 
all  respects  as  if  he  had  been  chosen  by  such  execution 
debtor."  [Id.,  Sec.  399.] 

"  In  case  any  of  said  appraisers  shall  fail  to  complete  such 
valuation,  such  plaintiff  his  agent  or  attorney,  or  such  officer 
in  their  absence,  or  the  execution  debtor,  or  the  appraisers, 
if  the  two  remain  who  were  first  chosen,  as  the  case  may  be, 
shall  choose  an  appraiser  in  the  place  of  the  one  before  cho- 
sen by  him  or  them,  and  refusing  to  act :  or  if  such  execution 
debtor  shall  in  such  case  fail  to  choose  such  appraiser  within 
two  days  after  the  notice  of  such  refusal  to  act  by  the  ap- 
praiser chosen  by  him,  such  officer  shall  choose  an  appraiser 
for  him ;  and  any  appraiser  thus  chosen  shall  proceed  in  all 
respects  as  if  he  had  been  chosen  in  the  first  instance."  [Id., 
Sec.  400.] 

"  Real  and  personal  estate  taken  in  execution  shall  sell  for 
the  best  price  the  same  will  bring  at  public  auction,  over  and 
above  two-thirds  of  the  appraised  value  thereof,  as  above 
herein  provided."  [Id.,  409.] 


INDIANA.  233 

"  But  the  estate  or  interest  of  the  judgment  debtor  in  any 
real  estate,  shall  not  be  sold  on  execution  until  the  rents  and 
profits  thereof  shall  have  first  been  offered  for  sale  at  public 
auction  ;  and  if  the  same  will  not  sell  for  a  sum  sufficient  to 
satisfy  such  execution,  then  the  estate  or  interest  of  the  judg- 
ment debtor  shall  be  sold  by  virtue  of  such  execution."  [Id., 
Sec.  410.] 

"  But  before  the  rents  and  profits  shall  be  sold  as  afore- 
said, the  same  shall  be  appraised  at  their  fair  cash  value  at 
the  time,  estimating  and  setting  down  such  value  for  each 
year  separately  by  the  appraisers  chosen  as  aforesaid."  [Id., 
Sec.  411.] 

"  So  many  years,  not  exceeding  such  term  of  seven  years, 
shall  be  sold  as  will  pay  and  satisfy  the  principal,  interest 
and  costs,  due  and  accruing  on  such  execution,  and  no  more  ; 
but  if  a  fraction  of  a  year  shall  occur  in  making  up  the  sum 
due  as  aforesaid,  such  fraction  shall  be  carried  and  conveyed 
as  a  whole  year  to  the  purchaser,  and  shall  entitle  him  to  the 
whole  year  in  which  such  fraction  occurs,  without  his  pay- 
ing the  balance  of  the  estimated  value  of  such  year."  [Id., 
Sec.  412.] 

Whenever  it  shall  happen  that  any  property  exposed  to 
sale  on  execution,  shall  not  under  the  foregoing  restrictions 
sell  for  want  of  bidders,  the  officer  may  return  his  execu- 
tion.* [Id.,  Sec.  419.] 

*  The  following  pei'sonal  property,  when  owned  by  any  person  having  a  family,  or 
being  a  householder,  is  exempt  from  levy  and  sale  under  any  execution,  to  wit :  The 
MBOMMiy  wwriag  appaid  Of  such  person  and  his  family;  the  family  bible  and 
school  books  used  by  or  in  the  family  ;  one  cow  and  calf,  six  sheep,  and  the  wool 
thereof;  two  beds  and  the  necessary  bedding  therefor;  household  and  kitchen  furni- 
ture, not  to  exceed  in  value  fifteen  dollars ;  one  chopping  axe,  one  plow,  one  weeding 
ho.- ;  one  loom,  one  spinning  wheel,  one  reel ;  and  the  necessary  provisions  to  supply 
the  family  for  two  months  ;  and  also  the  arms  and  accoutrements  required  by  law  to 
be  kept  by  such  person  for  military  duty,  or  with  which  he  shall  have  furnished  him- 
si  -It,  :is  the  member  of  any  military  company.  But  the  whole  amount  of  property  so 
exempt  can  in  no  case  exceed  the  value  of  one  hundred  dollars,  exclusive  of  such 
wearing  apparel,  bible,  school  books,  arms,  accoutrements,  and  the  two  months 

10* 


234.  INTEREST  OF  MONEY  IN 


XVII.     THE  INTEREST  OF  MONEY  IN  INDIANA. 

The  rate  of  interest  upon  the  loan  of  forbearance  of  mon- 
ey, goods  or  things  in  action  in  this  State,  is  at  and  after  the 
rate  of  six  dollars  upon  one  hundred  dollars  for  one  year,  and 
after  that  rate  for  a  greater  or  less  sum,  or  for  a  longer  or 
shorter  time.  [R.  S.,  580,  Sec.  25.] 

The  Statute  includes  judgments,  decrees,  and  licnu'dated 
accounts,  as  well  as  bonds,  bills,  notes,  and  other  instruments 
in  writing,  stipulating  the  payment  of  money.  If,  however, 
it  be  agreed  that  no  interest  shall  be  charged,  suoh  agree- 
ment on  the  part  of  the  creditor,  is  a  waiver  of  the  Statute 
allowing  him  interest.  In  regulating  the  rate  of  interest,  the 
Legislature  has  provided  that  but  six  per  cent  only  shall  be 
received ;  and  to  carry  such  provision  into  effect,  the  aid  oJ 
the  law  is  denied  to  the  creditor  or  lender  for  the  recovery  oi 
excessive  interest. 

The  contract  is  not  void  except  for  the  excess ;  yet  the 
usurer  loses  his  interest  for  his  temerity.  Herein  the  Statute 
differs  from  that  of  New- York,  upon  which,  in  the  main,  il 
is  grounded.  While,  on  the  one  hand,  the  usurer's  hand  is 
impotent  to  collect  his  usury,  on  the  other,  the  debtor  cannoi 

provisions  ;  and  in  all  cases,  the  judgment  debtor  may  claim  as  exempt  from  e\ecu 
tion  any  other  article  or  articles,  so  that  the  whole  value  of  the  property  so  exempts 
shall  not  exceed  one  hundred  dollars.  [R.  S.,  743,  Sec.  376.] 

As  to  property  not  exempt,  the  debtor  may  designate  what  shall  be  first  levict 
upon  and  first  sold  ;  but  no  goods  or  chattels  of  any  execution  debtor  can  be  sold  01 
execution  issued  out  of  any  Court  of  Record,  for  less  than  two-thirds  of  the  fail 
value  thereof  at  the  time  of  such  sale.  [R.  S.,  747,  Sec.  395.] 

To  determine  the  value  of  property  in  such  case,  "  two  disinterested  householder! 
of  the  neighborhood  where  the  levy  shall  have  been  made"  maybe  selected  as  np 
praisers,one  by  the  plaintiff,  his  agent,  or  attorney,  the  other  by  the  debtor  himself,  o 
if  he  fail  to  do  so  within  three  days  after  notice  of  the  levy,  then  both  may  b< 
chosen  by  the  plaintiff,  his  agent,  or  attorney;  and  whenever  any  of  the  propert1 
cannot  be  sold  by  an  officer  for  two-thirds  the  appraised  value  thereof,  such  office 
may  omit  to  sell,  and  return  his  process,  stating  his  failure  to  sell.  Further  process 
however,  can  issue  at  a  future  time.  [Id.,  750,  Sec.  404.] 


IN7DIANA.  235 

defraud  him  out  of  his  just  and  equitable  demand  for  the 
principal.*  But  see  the  topic  concerning  usury. 

XVIII.  THE  PENALTY  AND  FORFEITURE  OF  USURY  IN 
INDIANA. 

Usury  belongs  to  the  series  of  topics  which  concern  land 
owners  arid  incumbrancers,aswell  as  business  men  generally 
having  dealings  in  the  States.  Holders  of  mortgages  are 
particularly  concerned  in  those  provisions  of  Jaw,  which  reg- 
ulate the  receiving  or  the  agreeing  to  receive  excessive  inter- 
est. In  New- York,  all  bonds,  mortgages  and  other  covenants 
and  contracts  wherein  or  whereby  excessive  interest  shall  be 
reserved  or  taken,  or  agreed  to  be  reserved  or  taken,  are  ab- 
solutely void ;  but  in  this  State  a  less  rigorous  statute  pre- 
vails. "  No  contract  or  assurance  for  the  payment  of  money 
with  interest,  or  upon  which  interest  has  been  received,  con- 
tracted for,  taken  or  reserved,  after  a  greater  rate  than  is  al- 
lowed by  the  preceding  sections,  (six  per  cent)  shall  be  thereby 
rendered  void  ;  but  whenever  in  any  action  brought  on  such 
contract  or  assurance,  it  shall  appear  upon  a  special  plea  to 
that  effect,  or  otherwise,  that  a  greater  rate  of  interest  has  been 
directly  or  indirectly  reserved,  contracted  for,  taken,  or  re- 
ceived, than  is  allowed  by  law,  the  defendant  shall  recover 
his  full  costs  in  such  suit,  and  the  plaintiff  shall  only  recover 
judgment  for  the  principal  sum  due  him  without  interest 
thereon ;  or  if  he  shall  have  taken  or  received  such  interest, 
or  any  part  thereof,  before  the  rendition  of  such  judgment, 
the  same  shall  be  deducted  from  such  principal  sum,  and 

Interest  is  not  allowable  on  the  open,  unliquidated  accounts  of  merchants.    The 
custom  of  merchant!  will,  however,  be  considered,  but  witnesses  are  rot  admissible 

to  prove  a  custom  of  merchants  in  the  city  of  another  State,  allowing  them  to  charge 
interest  on  their  accounts,  when  the  courts  of  that  State  have  refused  to  recognize 
the  custom.  [3  Blackford,  312.] 

On  a  note  for  the  payment  of  a  ct-rtain  sum  on  a  specified  day,  with  interest  from 
the  date, if  no)  punctually  paid,  interest  from  date  w;is  recoverable  in  case  of  de- 
fault. [1  Blackf.  1,  9.] 

Interest  on  money  had  and  received  without  the  owner's  knowledge,  is  recoverable. 
[4  Blackf.  41.] 


236          PENALTY  AND  FORFEITURE  OF  USURY  IN  INDIANA. 

judgment  shall  be  rendered  for  the  balance  as  above."     [R. 
S.,  29,  Sec.  581.] 

All  excessive  interest  that  may  have  been  paid,  may  be  re- 
covered back  by  the  person  paying  the  same,  together  with  the 
lawful  interest  on  the  principal  borrowed  or  forborne,  provided 
a  suit  therefor  be  brought  within  a  year  after  payment  of 
the  usury ;  so  that  the  usurer,  in  fact,  forfeits  his  lawful  in- 
terest by  receiving  excess.  [Id.,  Sec.  30.] 

"Every  person  offending  against  the  provisions  of  this 
article,  (prohibiting  unlawful  interest)  shall  be  compelled  to 
answer  on  oath,  any  bill  that  may  be  exhibited  against  him 
in  chancery,  for  the  discovery  of  any  sum  of  money,  prop- 
erty, or  things  in  action,  reserved,  contracted  for,  taken  or  re- 
ceived, in  violation  of  the  foregoing  provisions  or  any  of 
them."  [Id.,  Sec.  31.]  If  such  person  discover  truly  the 
facts  and  circumstances  concerning  the  usury,  both  interest 
and  the  excess  may  be  recovered  against  him,  yet  in  such 
cases  he  cannot  be  held  to  answer  criminally  for  the  usury, 
nor  be  subjected  to  any  penalty  or  forfeiture  in  any  criminal 
prosecution  therefor.  All  witnesses  disclosing  usury  are  in 
like  manner  exempted. 

"  If  any  person  shall,  either  directly  or  indirectly,  take, 
receive,  reserve  by  contract  or  agreement,  or  accept  in 
money,  property,  or  thing  in  action,  or  reserve  in  any  note, 
bill,  obligation,  or  security,  any  greater  rate  of  interest 
than  is  allowed  and  authorized  by  law,  upon  any  loan  or  for- 
bearance of  any  money,  property  or  thing  in  action,  or  is  al- 
lowed and  authorized  by  law,  upon  any  debt,  obligation, 
contract,  or  sum  of  money,  he  shall  upon  conviction  thereof, 
upon  indictment  in  the  proper  Circuit  Court,  be  fined  in 
double  the  amount  of  the  excess  of  interest  so  taken,  received, 
accepted,  reserved,  or  secured  above  the  rate  of  interest  al- 
lowed by  law."  [Id.,  Sec.  36.]  Compared  with  New-York, 
the  penalty  and  punishment  are  trivial,  yet  it  is  believed 
that  severer  penalties  arid  punishments  would  not  better  sub- 
serve the  ends  of  justice  or  the  interests  of  the  people. 


ILLINOIS.  237 


CHAPTER  IV, 


THE  STATE  OF  ILLINOIS. 

Source  of  Title  to  Lands  in  Illinois  Election  of  Illinois  Territory  from  that  part  of 
Indiana  lying  west  of  the  W abash.  Act  enabling  the  people  therein  to  form  a 
Constitution  and  State  Government.  Ordinance  accepting  the  propositions  of 
Congress.  Admission  of  Illinois  into  the  Union  as  a  State.  Her  Constitution. 
Land  Titles  generally,  as  regulated  by  Statute.  The  Execution.  Attestation  , 
Proof,  Acknowledgment,  Authentication,  and  Recording  of  Deeds  and  Mortga- 
ges. The  Execution,  Attestation,  Probate  and  Recording  of  Wills  of  Real  Es- 
tate. Regulations  concernim;  Descents.  The  Levy  and  Collection  of  Land  Taxes. 
Land  Tax  Forfeitures.  Sal«->  and  Redemption^  Limitation  upon  Actions  for 
the  Recovery  of  Lands.  The  Statute  of  Exemptions.  Interest  of  Money  and 
Usury. 

1.    THE  SOURCE  OF  TITLE  TO  LANDS  IN  ILLINOIS. 

Illinois  is  the  far-famed  prairie  land  whose  "meadowy 
plains,  magnificent  and  vast,  with  their  buffaloes,  stags,  wild- 
cats, bustards,  swan,  paroquets  and  beaver,"  were  so  "  tran- 
scendantly  amazing"  to  the  early  French  travelers  in  the 
west,  and  which  have  given  to  this  State  her  enviable  ce- 
lebrity. She  derived  her  name  from  a  tribe  of  her  native 
proprietors,  whose  comeliness  of  person,  urbanity  of  man- 
ners, and  generous  hospitality  in  giving  bread  and  shelter  to 
the  pious  Marquette  in  1673,  were  by  him  so  graphically 
portrayed  in  the  journal  of  his  mission  to  that  people.  Illi- 
nois, however,  was  not  the  self-designation,  but  a  French 
nomination  of  the  "  most  handsome,  kindly  and  effeminate" 
of  the  tribes  of  North  America. 

As  this  State  was  erected  from  Indiana,  west  of  the  Wa- 


238  SOURCE  OF  TITLE  TO  LANDS  IN 

bash,  (a  portion  of  the  territory  of  the  United  States  north- 
west of  the  Ohio,)  the  source  and  deduction  of  title  to  the 
lands  within  the  borders  of  the  State,  may  be  seen  in  the  two 
preceding  chapters.  Suffice  it  here  that  when  it  was  visited 
by  civilized  men,  it  was  in  the  peaceable  possession  of  the 
Illinois,  Miamis,  Peorias  and  Kaskaskias,  who  claimed  the 
same  as  native  proprietors.  [See  Ante  147.]  It  is  believed 
that  the  first  white  man  that  ever  set  foot  upon  the  soil  of  II- 
linois,  was  Nicholas  Perrot,  a  messenger  sent  by  the  In- 
tendent  General  of  Canada  into  this  region  to  effect  a  con- 
gress of  the  tribes  ;  who  whilst  upon  this  errand  visited  the 
Miami  village,  on  the  present  site  of  Chicago  in  the  year 
1670.  Three  years  afterwards,  however,  Illinois  was  visited 
by  a  band  of  Jesuit  Missionaries,  under  the  lead  and  guidance 
of  James  Marquette,  and  in  1680  by  La  Salle,  who  visited 
an  Illinois  village  of  five  hundred  cabins  on  the  site  of  Rock 
Fort,  in  the  county  bearing  the  name  of  that  French  cheva- 
lier. After  exploring  the  country,  and  projecting  a  line  of 
fortifications  from  Canada  to  the  Mississippi,  he  returned 
to  France,  and  from  thence  to  New-Orleans,  where  he 
died. 

The  leading  object  of  private  enterprise  at  that  day,  was 
the  fur  trade,  which  invited  thither  various  bands  of  traders 
in  company  with  or  in  the  trail  of  the  missionaries.  This 
being  a  source  of  great  profit,  trading  posts  were  established 
at  different  points  from  time  to  time,  until  1720,  when  a  per- 
manent settlement  was  effected  at  Kaskaskia  arid  Cahokia. 
[See  Ante  131.] 

For  the  Coutume  de  Paris,  the  surrender  of  the  country  to 
the  English,  its  relinquishment  by  Great  Britain,  the  cessions 
of  Massachusetts,  Connecticut,  New- York  and  Virginia,  and 
the  ordinance  of  1787,  the  reader  is  referred  to  ante  127  to 
157  inclusive. 

By  the  articles  of  compact  between  the  original  States  and 
the  people  inhabiting  the  country  northwest  of  the  Ohio,  it 


ILLINOIS.  239 

was  provided  that  not  less  than  three  nor  more  than  five 
States  should  be  formed  from  such  territory ;  and  that  the 
western  State  should  be  bounded  by  the  Mississippi,  the  Ohio 
and  Wabash  rivers.  On  the  seventh  day  of  May  in  the 
year  1800,  this  vast  empire  was  divided  by  a  line  drawn 
from  opposite  the  mouth  of  the  Kentucky  river,  northward 
by  Fort  Recovery  to  the  Canada  line,and  the  country  west 
thereof  erected  into  a  territory  called  Indiana.  In  the  course 
of  events,  the  following  act  was  passed  by  Congress : 

II.  AN  ACT  FOR  DIVIDING  THE  INDIANA  TERRITORY  INTO 
TWO  SEPARATE  GOVERNMENTS.  APPROVED  FEBRUARY 
3,  1809. 

"  Sec.  I.  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  United  States  of  America  in  Congress  as- 
sembled, That  from  and  after  the  first  day  of  March  next, 
all  that  part  of  the  Indiana  territory  which  lies  west  of  the 
Wabash  river,  and  a  direct  line  drawn  from  the  said  Wabash 
river  and  Post  Vincennes,  due  north  to  the  territorial  line 
between  the  United  States  and  Canada,  shall,  for  the  purpose 
of  temporary  government,  constitute  a  separate  territory,  and 
be  called  Illinois. 

"  Sec.  II.  And  be  it  further  enacted,  That  there  shall  be 
established  within  the  said  territory  a  government  in  all  re- 
spects similar  to  that  provided  by  the  ordinance  of  Congress, 
passed  on  the  thirteenth  day  of  July,  one  thousand  seven 
hundred  and  eighty-seven,  for  the  government  of  the  terri- 
tory of  the  United  States,  northwest  of  the  river  Ohio ;  and 
by  an  act  passed  on  the  seventh  day  of  August,  one  thousand 
seven  hundred  and  eighty-nine,  entitled  'An  act  to  provide 
for  the  government  of  the  territory  northwest  of  the  river 
Ohio' ;  and  the  inhabitants  thereof  shall  be  entitled  to  and 
enjoy  all  and  singular  the  rights,  privileges,  and  advantages, 
granted  and  secured  to  the  people  of  the  territory  of  the 


240  THE  TERRITORY  OF 

United  States,  northwest  of  the  river  Ohio,  by  the  said  or- 
dinance. 

"  Sec.  III.  And  be  it  further  enacted,  That  the  officers  for 
the  said  territory,  who,  by  virtue  of  this  act,  shall  be  appoint- 
ed by  the  President  of  the  United  States,  by  and  with  the  ad- 
vice and  consent  of  the  Senate,  shall  respectively  exercise 
the  same  powers,  perform  the  same  duties,  and  receive  for 
their  services  the  same  compensations,  as  by  the  ordinance 
aforesaid,  and  the  laws  of  the  United  States,  have  been  pro- 
vided and  established  for  similar  officers  in  the  Indiana  ter- 
ritory. And  the  duties  and  emoluments  of  Superintendent 
of  Indian  Affairs,  shall  be  united  with  those  of  Governor : 
Provided,  that  the  President  of  the  United  States  shall  have 
full  power,  in  the  recess  of  Congress,  to  appoint  and  com- 
mission all  officers  herein  authorized,  and  their  commissions 
shall  continue  in  force  until  the  end  of  the  next  session  of 
Congress. 

"  Sec.  IV.  And  be  it  further  enacted,  That  so  much  of  the 
ordinance  for  the  government  of  the  territory  of  the  United 
States,  northwest  of  the  Ohio  river,  as  relates  to  the  organi- 
zation of  a  General  Assembly  therein,  and  prescribes  the 
powers  thereof,  shall  be  in  force  and  operate  in  the  Illinois 
territory,  whenever  satisfactory  evidence  shall  be  given  to 
the  Governor  thereof,  that  such  is  the  wish  of  a  majority  of 
the  freeholders,  notwithstanding  there  may  be  therein  five 
thousand  free  male  inhabitants  of  the  age  of  twenty-one 
years  and  upwards :  Provided,  that  until  there  shall  be  five 
thousand  free  male  inhabitants  of  the  age  of  twenty-one 
years  and  upwards  in  said  territory,  the  whole  number  of 
representatives  to  the  General  Assembly  shall  not  be  less  than 
seven  nor  more  than  nine,  to  be  apportioned  by  the  Governor 
to  the  several  counties  in  the  said  territory,  agreeably  to  the 
number  of  free  males  of  the  age  of  twenty-one  years  and 
upwards,  which  they  may  respectively  contain. 

"  Sec.  V.  And  be  it  further  enacted,  That  nothing  in  this 


ILLINOIS.  241 

act  contained,  shall  be  construed  so  as  in  any  manner  to  af- 
fect the  government  now  in  force  in  the  Indiana  territory, 
further  than  to  prohibit  the  exercise  thereof  within  the  Illinois 
territory,  from  and  after  the  aforesaid  first  day  of  March  next. 

"Sec.  VI.  And  be  it  further  enacted,  That  all  suits,  process, 
and  proceedings,  which,  on  the  first  day  of  March  next, 
shall  be  pending  in  the  court  of  any  county  which  shall  be 
included  within  the  said  territory  of  Illinois,  and  also  all 
suits,  process,  and  proceedings,  which,  on  the  said  first  day 
of  March  next,  shall  be  pending  in  the  General  Court  of  the 
Indiana  territory,  in  consequence  of  any  writ  of  removal,  or 
order  for  trial  at  bar,  and  which  had  been  removed  from  any 
of  the  counties  included  within  the  limits  of  the  territory  of 
Illinois  aforesaid,  shall,  in  all  things  concerning  the  same, 
be  proceeded  on,  and  judgments  and  decrees  rendered  thereon, 
in  the  same  manner  as  if  the  said  Indiana  territory  had  re- 
mained undivided. 

"Sec.  VII.  And  be  it  further  enacted,  That  nothing  in  this 
act  contained  shall  be  so  construed  as  to  prevent  the  collec- 
tion of  taxes,  which  may  on  the  first  day  of  March  next,  be 
due  to  the  Indiana  territory  on  lands  lying  in  the  said  terri- 
tory of  Illinois. 

"  Sec.  VIII.  And  be  it  further  enacted,  That  until  it  shall  be 
otherwise  ordered  by  the  Legislature  of  the  said  Illinois  ter- 
ritory, Kaskaskia,  on  the  Mississippi  river,  shall  be  the  seat 
of  government  for  the  said  Illinois  territory."*  [U.  S.  Statutes 
by  Peters :  Vol.  2,  514.] 

*  On  the  16th  of  April,  1814,  Congress  passed  an  act  confirming  the  claims  of 
the  early  settlers  of  the  .territory  to  lands  purchased  by  them  of  commandants  of 
posts,  and  entitling  settlers  who  had  cultivated  and  improved  any  tract  prior  to  Feb- 
ruary 5,  1313,  to  a  pre-emption  thereof,  to  the  extent  of  one  section  of  land.  [U. 
S.  Stat.,  Vol.  3,  12G.] 

On  the  27th  of  February,  1815,  an  act  was  passed  extending  the  western  boun- 
dary of  the  Illinois  Territory,  to  the  middle  of  the  Mississippi  river,  so  as  to  in- 
clude all  islands  in  said  river  between  the  middle  and  eastern  margin,  throughout 
the  length  of  said  line.     [Id.,  218.] 
11 


242  TERRITORY  OF 

III.  AN  ACT  TO  ENABLE  THE  PEOPLE  OF  THE  ILLINOIS  TER- 
RITORY TO  FORM  A  CONSTITUTION  AND  STATE  GOVERN- 
MENT, AND  FOR  THE  ADMISSION  OF  SUCH  STATE  INTO 
THE  UNION  ON  AN  EQ,UAL  FOOTING  WITH  THE  ORIGINAL 
STATES.  'APPROVED  APRIL  18,  1818. 

"  Section  I.  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  United  States  of  America,  in  Congress  as- 
sembled, That  the  inhabitants  of  the  territory  of  Illinois  be, 
and  they  are  hereby,  authorized  to  form  for  themselves  a 
constitution  and  State  government,  and  to  assume  such  name 
as  they  shall  deem  proper ;  and  the  said  State,  when  formed, 
shall  be  admitted  into  the  Union  upon  the  same  footing  with 
the  original  States,  in  all  respects  whatever. 

"  Sec.  II.  And  be  it  further  enacted,  That  the  said  State  shall 
consist  of  all  the  territory  included  within  the  following 
boundaries,  to  wit :  Beginning  at  the  mouth  of  the  Wabash 
river ;  thence  up  the  same,  and  with  the  line  of  Indiana,  to 
the  northwest  corner  of  said  State  ;  thence  east,  with  the  line 
of  the  same  State,  to  the  middle  of  Lake  Michigan ;  thence 
north,  along  the  middle  of  said  lake,  to  north  latitude  forty- 
two  degrees  thirty  minutes ;  thence  west  to  the  middle  of 
the  Mississippi  river;  thence,  down  along  the  middle  , of 
that  river,  to  its  confluence  with  the  Ohio  river ;  and  thence, 
up  the  latter  river,  along  its  northwestern  shore,  to  the  be- 
ginning :  Provided,  That  the  convention  hereinafter  provi- 
ded for,  when  formed,  shall  ratify  the  boundaries  aforesaid ; 
otherwise  they  shall  be  and  remain  as  now  prescribed  by  the 
ordinance  for  the  government  of  the  territory  northwest  of 
the  river  Ohio :  Provided  also,  That  the  said  State  shall 
have  concurrent  jurisdiction  with  the  State  of  Indiana  on 
the  Wabash  river,  so  far  as  said  river  shall  form  a  common 
boundary  to  both,  and  also  concurrent  jurisdiction  on  the 
Mississippi  river,  with  any  State  or  States  to  be  formed  west 


ILLINOIS.  243 

thereof,  so  far  as  the  said  river  shall  form  a  common  bounda- 
ry to  both. 

"  Sec.  III.  And  be  it  further  enacted,  That  all  white  male 
citizens  of  the  United  States,  who  shall  have  arrived  at  the 
age  of  twenty-one  years,  and  have  resided  in  said  territory 
six  months  previous  to  the  day  of  election,  and  all  persons 
having  in  other  respects  the  legal  qualifications  to  vote  for 
representatives  in  the  General  Assembly  of  the  said  territory, 
be,  and  they  are  hereby,  authorized  to  choose  representatives 
to  form  a  Convention,  who  shall  be  apportioned  amongst  the 
several  counties  as  follows:  From  the  county  of  Bond,  two 
representatives  ;  from  the  county  of  Madison,  three  represen- 
tatives ;  from  the  county  of  St.  Clair,  three  representatives ; 
from  the  county  of  Monroe,  two  representatives ;  from  the 
county  of  Randolph,  two  representatives ;  from  the  county 
of  Jackson,  two  representatives;  from  the  county  of  John- 
son, two  representatives  ;  from  the  county  of  Pope,  two  rep- 
resentatives ;  from  the  county  of  Gallatin,  three  representa- 
tives; from  the  county  of  White,  two  representatives;  from 
the  county  of  Edwards,  two  representatives;  from  the  county 
of  Crawford,  two  representatives;  from  the  county  of  Union, 
two  representatives;  from  the  county  of  Washington,  two 
representatives;  and  from  the  county  of  Franklin,  two  rep- 
resentatives. And  the  election  for  the  representatives  afore- 
said, shall  be  holden  on  the  first  Monday  of  July  next,  and 
the  two  following  days,  throughout  the  several  counties  in 
the  said  territory,  and  shall  be  conducted  in  the  same  man- 
ner, and  under  the  same  regulations,  as  prescribed  by  the 
laws  of  the  said  territory  regulating  elections  therein  for 
members  of  the  House  of  Representatives. 

"Sec.  IV.  And  be  it  further  enacted,  That  the  members  of 
the  Convention,  thus  duly  elected  be,  and  they  are  hereby, 
authorized  to  meet  at  the  seat  of  government  of  the  said  ter- 
ritory, on  the  first  Monday  of  the  month  of  August  next, 
which  Convention,  when  met.  shall  first  determine^by  a  ma- 


TERRITORY  OF 

jority  of  the  whole  number  elected,  whether  it  be  or  be  not 
expedient  at  that  time  to  form  a  constitution  and  State  gov- 
ernment for  the  people  within  the  said  territory,  and  if  it  be 
expedient,  the  Convention  shall  be  arid  hereby  is  authorized 
to  form  a  constitution  and  State  government;  or,  if  it  be 
deemed  more  expedient,  the  said  Convention  shall  provide  by 
ordinance  for  electing  representatives  to  form  a  constitution 
or  frame  of  government ;  which  said  representatives  shall  be 
chosen  in  such  manner,  and  in  such  proportion,  and  shall 
meet  at  such  time  and  place,  as  shall  Be  prescribed  by  the 
said  ordinance,  and  shall  then  form  for  the  people  of  said 
territory  a  constitution  and  State  government:  Provided, 
that  the  same,  whenever  formed,  shall  be  republican,  and 
not  repugnant  to  the  ordinance  of  the  thirteenth  of  July, 
seventeen  hundred  and  eighty-seven,  between  the  original 
States  and  the  people  and  States  of  the  territory  northwest  of 
the  river  Ohio ;  excepting  so  much  of  said  articles  as  relate 
to  the  boundaries  of  the  States  therein  to  be  formed :  And 
provided  also,  that  it  shall  appear,  from  the  enumeration  di- 
rected to  be  made  by  the  Legislature  of  the  said  territory, 
that  there  are,  within  the  proposed  State,  not  less  than  forty 
thousand  inhabitants. 

Sec.  V.  And  be  it  further  enacted,  That  until  the  next 
general  census  shall  be  taken,  the  said  State  shall  be  entitled 
to  one  representative  in  the  House  of  Representatives  of  the 
United  States. 

"Sec.  VI.  And  be  it  further  enacted,  That  the  following 
propositions  be,  and  the  same  are  hereby,  offered  to  the' Con- 
vention of  said  territory  of  Illinois,  when  formed,  for  their 
free  acceptance  or  rejection,  which,  if  accepted  by  the  Con- 
vention, shall  be  obligatory  upon  the  United  States  and  the 
said  State. 

First.  That  section  numbered  sixteen,  in  every  township, 
and  when  such  section  has  been  sold  or  otherwise  disposed 
of,  other  lands  equivalent  thereto,  and  as  contiguous  as  may 


ILLINOIS.  245 

be,  shall  be  granted  to  the  State,  for  the  use  of  the  inhabit- 
ants of  such  township,  for  the  use  of  schools. 

Second.  That  all  salt  springs  within  such  State,  and  the 
land  reserved  for  the  use  of  the  same,  shall  be  granted  to 
the  said  State,  for  the  use  of  the  said  State,  and  the  same  to 
be  used  under  such  terms,  and  conditions,  and  regulations, 
as  the  Legislature  of  the  said  State  shall  direct. 

Third.  That  five  per  cent  of  the  net  proceeds  of  the  lands 
lying  within  such  State,  and  which  shall  be  sold  by  Con- 
gress, from  and  after  the  first  day  of  January,  one  thousand 
eight  hundred  and  nineteen,  after  deducting  all  expenses  in- 
cident to  the  same,  shall  be  reserved  for  the  purposes  follow- 
ing, viz  :  two-fifths  to  be  disbursed,  under  the  direction  of 
Congress,  in  making  roads  leading  to  the  State  ;  the  residue 
to  be  appropriated  by  the  Legislature  of  the  State,  for  the  en- 
couragement of  learning,  of  which  one  sixth  part  shall  be 
exclusively  bestowed  on  a  college  or  university. 

Fourth.  That  thirty-six  sections,  or  one  entire  township, 
which  shall  be  designated  by  the  President  of  the  United 
States,  together  with  the  one  heretofore  reserved  for  that  pur- 
pose, shall  be  reserved  for  the  use  of  a  seminary  of  learning, 
and  vested  in  the  Legislature  of  the  said  State,  to  be  appro- 
priated solely  to  the  use  of  such  seminary  by  the  said  Legis- 
lature. Provided,  always,  that  the  four  foregoing  proposi- 
tions, herein  offered,  are  on  the  conditions  that  the  Conven- 
tion of  the  said  state  shall  provide,  by  an  ordinance  irrevoca- 
ble without  the  consent  of  the  United  States,  that  every  and 
each  tract  of  land  sold  by  the  United  States,  from  and  after 
the  first  day  of  January,  one  thousand  eight  hundred  and 
nineteen,  shall  remain  exempt  from  any  tax  laid  by  order,  or 
under  any  authority,  of  the  State,  whether  for  State,  county, 
or  township,  or  any  other  purpose  whatever,  for  the  term  of 
five  years  from  and  after  the  day  of  sale  :  And  further,  that 
the  bounty  lands  granted,  or  hereafter  to  be  granted,  for  mili- 
tary services  during  the  late  war,  shall,  while  they  continue 


246         ORDINANCE  OF  THE  CONVENTION  OF 

to  be  held  by  the  patentees,  or  their  heirs,  remain  exempt,  as 
aforesaid,  from  all  taxes,  for  the  term  of  three  years,  from  and 
after  the  date  of  the  patents  respectively  ;  and  that  all  the 
lands  belonging  to  the  citizens  of  the  United  States,  residing 
without  the  said  State,  shall  never  be  taxed  higher  than  lands 
belonging  to  persons  residing  therein. 

"  Sec.  VII.  And  be  it  further  enacted,  That  all  that  part  of 
the  territory  of  the  United  States  lying  north  of  the  State  of 
Indiana,  and  which  was  included  in  the  former  Indiana  ter- 
ritory, together  with  that  part  of  Illinois  which  is  situated 
north  of  and  not  within  the  boundaries  prescribed  by  this 
act,  to  the  State  thereby  authorized  to  be  formed,  shall  be, 
and  hereby  is,  attached  to,  and  made  a  part  of  the  Michigan 
territory,  from  and  after  the  formation  of  the  said  State,  sub- 
ject, nevertheless,  to  be  hereafter  disposed  of  by  Congress, 
according  to  the  right  reserved  in  the  fifth  article  aforesaid, 
and  the  inhabitants  therein  shall  be  entitled  to  the  same  priv- 
ileges and  immunities,  and  subject  to  the  same  rules  and  reg- 
ulations, in  all  respects,  with  the  other  citizens  of  the  Michi- 
gan territory."  [U.  S.  Statutes  by  Peters,  428.] 


CEPTING  THE  PROPOSITIONS  OF  CONGRESS. 

"  Whereas,  The  Congress  of  the  United  States,  in.  the  act 
entitled  l  An  act  to  enable  the  people  of  the  Illinois  territory 
to  form  a  constitution  and  State  government,  and  for  the  ad- 
mission of  such  State  into  the  Union  on  an  equal  footing  with 
the  original  States,  passed  the  18th  of  April,  1818,"  have  of- 
fered to  this  Convention  for  their  free  acceptance  or  rejection, 
the  following  propositions,  which,  if  accepted  by  the  Conven- 
tion, are  to  be  obligatory  upon  the  United  States,  viz  : 

First.  That  section  numbered  sixteen  in  every  town- 
ship, and  where  such  section  has  been  sold,  or  otherwise  dis- 
posed of,  other  lands  equivalent  thereto,  and  as  contiguous  as 


ILLINOIS.  247 

may  be,  shall  be  granted  to  the  State  for  the  use  of  the  inhab- 
itants of  such  township  for  the  use  of  schools. 

Second.  That  all  salt  springs  within  such  State,  and  the 
lands  reserved  for  the  use  of  the  same,  shall  be  granted  to 
the  said  State  for  the  use  of  the  said  State,  and  the  same  to 
be  used  under  such  terms  and  conditions,  and  regulations,  as 
the  Legislature  of  the  said  State  shall  direct :  provided,  the 
Legislature  shall  never  sell  nor  lease  the  same  for  a  longer 
period  than  ten  years  at  any  one  time. 

Third.  That  five  per  cent  of  the  net  proceeds  of  the 
lands  lying  within  such  State,  and  which  shall  be  sold  by 
Congress  from  and  after  the  first  day  of  January,  one  thou- 
sand eight  hundred  and  nineteen,  after  deducting  all  expen- 
ses incident  to  the  same,  shall  be  reserved  for  the  purposes 
following,  viz :  two-fifths  to  be  disbursed  under  the  direc- 
tion of  Congress,  in  making  roads  leading  to  the  State  ;  the 
residue  to  be  appropriated  by  the  Legislature  of  the  State,  for 
the  encourneomcnt  of  learning,  of  which  one-sixth  part  shall 
be  exclusively  bestowed  on  a  college  or  university. 

Fourth.  That  thirty-six  sections,  or  one  entire  township, 
which  shall  he  designated  by  the  President  of  the  United 
States,  together  with  the  one  heretofore  reserved  for  that  pur- 
pose, shall  be  reserved  for  the  use  of  a  seminary  of  learning, 
and  vested  in  the  Legislature  of  the  said  State,  to  be  appro- 
priated solely  to  the  use  of  such  seminary  by  the  said  Legis- 
lature. 

And  whereas,  the  four  foregoing  propositions  are  offered 
on  the  condition  that  this  Convention  shall  provide  by  ordi- 
nance, irrevocable  without  the  consent  of  the  United  States, 
that  every  and  each  tract  of  land  sold  by  the  United  States, 
from  and  after  the  first  day  of  January  one  thousand  eight 
hundred  and  nineteen,  shall  remain  exempt  from  any  tax 
laid  by  order  or  under  the  authority  of  the  State,  whether 
for  State,  county,  or  township,  or  any  other  purpose  what- 
ever, for  the  term  of  five  years  from  and  after  the  day  of  sale. 


248  STATE  OF 

And  further,  that  the  bounty  lands  granted,  or  hereafter  to 
be  granted  for  military  service  during  the  late  war,  shall, 
while  they  continue  to  be  held  by  the  patentees  or  their  heirs, 
remain  exempt,  as  aforesaid,  from  all  taxes  for  the  term  of 
three  years  from  and  after  the  date  of  the  patents  respective- 
ly ;  and  that  all  the  lands  belonging  to  the  citizens  of  the 
United  States,  residing  without  the  said  State,  shall  never  be 
taxed  higher  than  lands  belonging  to  persons  residing 
therein." 

"  Therefore,  this  Convention,  on  behalf  of,  and  by  the  au- 
thority of  the  people  of  the  State,  do  accept  of  the  foregoing 
propositions  ;  and  do  further  ordain  and  declare,  that  every 
and  each  tract  of  land  sold  by  the  United  States,  from  and 
after  the  first  day  of  January  one  thousand  eight  hundred 
and  nineteen,  shall  remain  exempt  from  any  tax,  laid  by  or- 
der or  under  any  authority  of  this  State,  whether  for  State, 
county  or  township,  or  any  other  purpose  whatever,  for  the 
term  of  five  years  from  and  after  the  day  of  sale. 

"  And  that  the  bounty  lands  granted,  or  hereafter  to  be 
granted,  for  military  services  during  the  late  war,  shall, 
while  they  continue  to  be  held,  by  the  patentees  or  their  heirs, 
remain  exempt,  as  aforesaid,  from  all  taxes  for  the  term  of 
three  years  from  and  after  the  date  of  the  patents  respective- 
ly ;  and  that  all  the  lands  belonging  to  the  citizens  of  the 
United  States,  residing  without  the  said  State,  shall  never  be 
taxed  higher  than  lands  belonging  to  persons  residing  therein. 
And  this  Convention  do  further  ordain  and  declare,  that  the 
foregoing  ordinance  shall  not  be  revoked  without  the  con- 
sent of  the  United  States. 

"  Done  in  Convention  at  Kaskaskia,  the  twenty-sixth  day 
of  August,  in  the  year  of  our  Lord,  one  thousand  eight  hun- 
dred and  eighteen,  and  of  the  Independence  of  the  United 
States  of  America,  the  forty-third."  [R.  S.,  Illinois,  27.] 


ILLINOIS.-  249 

V.     THE    CONSTITUTION    OF    ILLINOIS. 

The  people  of  the  Illinois  Territory,  having  the  right  of 
admission  into  the  General  Government,  as  a  member  of  the 
Union,  under  the  ordinance  of  1787,  and  the  law  of  Con- 
gress approved  on  the  eighteenth  day  of  April,  1S18,  to  ena- 
able  the  people  of  said  territory  to  form  a  constitution  and 
State  government,  and  for  the  admission  of  such  State  into 
the  Union,  on  an  equal  footing  with  the  original  States,  did, 
by  their  representatives,  in  a  Convention  held  at  Kaskaskia, 
on  the  twenty-sixth  day  of  August,  in  the  year  of  our  Lord 
one  thousand  eight  hundred  and  eighteen,  ratify  the  bounda- 
ries assigned  by  Congress  to  the  State,  arid  adopt  a  constitu- 
tion for  its  government. 

That  document  provides  that  no  freeman  shall  be  disseiz- 
ed of  his  freehold,  except  by  law  or  the  judgment  of  his 
peers,  and  that  all  lands  theretofore  granted  as  a  common  to 
the  inhabitants  of  any  town,  hamlet,  village  or  corporation, 
body  politic  or  corporate,  or  by  any  government  having 
power  to  make  such  grant,  should  forever  remain  common 
to  the  inhabitants  of  such  town,  hamlet,  village  or  corpora- 
tion ;  and  that  such  commons  should  not  be  leased,  sold,  or 
divided,  under  any  pretence  whatever,  except  the  commons 
of  Cahokia,  and  Prairie  Du  Pont.  [Art.  8,  Sec.  8.] 

It  is  silent  upon  the  subject  of  tenures  and  estates,  leaving 
them  to  be  regulated  entirely  by  the  Legislature.  [See  Ap- 
pendix.] 

VI.     LAND    TITLES    GENERALLY    IN    ILLINOIS. 

Estates  in  land  in  this  State  are  regulated  by  the  following 
provisions  of  the  Revised  Statutes : 

"  Livery  of  seizin  shall  in  no  case  be  necessary  for  the 
conveyance  of  real  property ;  but  every  deed,  mortgage,  or 
other  conveyance  in  writing,  signed  and  sealed  by  the  party 
making  the  same,  (the  maker  or  makers  being  of  full  age, 


250  LAND  TITLES  IN 

sound  mind,  discovert,  at  large,  and  not  in  duress,)  shall  be 
sufficient,  without  livery  of  seizin,  for  the  giving,  granting, 
selling,  mortgaging,  leasing  or  otherwise  conveying  or 
transferring  any  lands,  tenements  or  hereditaments,  in  this 
State;  so  as,  to  all  intents  and  purposes,  absolutely  and  fully 
to  vest  in'  every  donee,  grantee,  bargainee,  mortgagee,  lessee 
or  purchasers,  all  such  estate  or  estates  as  shall  be  specified 
in  any  such  deed,  mortgage,  lease  or  other  conveyance. 
Nothing  herein  contained  shall  be  so  construed  as  to  divert 
or  defeat  the  older,  or  better  estate  or  right  of  any  person  or 
persons,  not  party  to  any  such  deed,  mortgage,  lease  or  other 
conveyance."  [R.  S.,  103,  Sec.  1.] 

"  Every  estate,  feoffment,  gift,  grant,  deed,  mortgage,  lease, 
release  or  confirmation  of  lands,  tenements,  rents,  services 
or  hereditaments,  made  or  had,  or  hereafter  to  be  made  01 
had,  by  any  person  or  persons,  being  of  full  age,  sound 
mind,  discovert,  at  large,  and  not  in  duress,  to  any  person  or 
persons  ;  and  all  recoveries,  judgments,  and  executions,  had 
or  made,  or  to  be  had  or  made,  shall  be  good  and  effectual 
to  him,  her,  or  them,  to  whom  it  is  or  shall  be  so  made,  had, 
or  given,  and  to  all  others ;  to  his,  her  or  their  use  against 
the  judgment  debtor,  seller,  feoffer,  donor,  grantor,  mort- 
gagor, lessor,  releasor  or  confirmor,  and  against  his  her,  or 
their  heirs,  or  heirs  claiming  the  same,  only  as  heir  or  heirs, 
and  every  of  them  ;  and  against  all  others  having  or  claim- 
ing any  title  or  interest  in  the  same,  only  to  the  use  of  the 
same  judgment  debtor,  seller,  feoffor.  donor,  grantor,  mort- 
gagor, lessor,  releasor,  or  confirmor,  or  his,  her  or  their  said 
heirs,  at  the  time  of  the  judgment,  execution,  bargain,  sale, 
mortgage,  covenant,  lease,  release,  gift  or  grant  made."  [Id., 
Sec.  2.] 

"  Where  any  person  or  persons  stand  or  be  seized,  or  at 
any  time  hereafter  shall  stand  or  be  seized,  of  and  in  any 
messuages,  lands,  tenements,  rents,  services,  reversions,  re- 
mainders, or  other  hereditaments,  to  the  use,  confidence  or 


ILLINOIS.  251 

trust  of  any  other  person  or  persons,  or  of  any  body  politic, 
by  reason  of  any  bargain,  sale,  feoffment,  fine,  recovery,  cov- 
enant, contract,  agreement,  will  or  otherwise,  by  any  man- 
ner of  means  whatsoever ;  in  every  such  case,  all  and  every 
such  person  or  persons,  and  bodies  politic,  that  have,  or 
hereafter  shall  have  any  such  use,  confidence  or  trust,  in  fee 
simple,  for  term  of  life  or  for  years,  or  otherwise,  or  any  use, 
confidence  or  trust,  in  remainder  or  reversion,  shall  from 
thenceforth  stand,  and  be  seized,  deemed  and  adjudged  in 
lawful  seizin,  estate  and  possession  of,  and  in  the  same  mes- 
suages, lands,  tenements,  rents,  services,  reversions,  remain- 
ders, and  hereditaments,  with  their  appurtenances,  to  all  in- 
tents, constructions,  and  purposes  in  law,  of  and  in  such 
like  estates,  as  they  had  or  shall  have  in  use,  confidence,  or 
trust  of,  or  in  the  same ;  and  that  the  estate,  right,  title  and 
possession,  that  was  or  shall  be  in  such  person  or  persons, 
that  were,  or  hereafter  shall  be  seized  of  any  lands,  tene- 
ments or  hereditaments,  to  the  use,  confidence,  or  trust  of 
any  such  person  or  persons,  or  of  any  body  politic,  be  from 
henceforth  clearly  deemed  and  adjudged  to  be  in  him,  her  or 
them,  that  have,  or  hereafter  shall  have  such  use.  confidence 
or  trust,  after  such  quality,  manner,  form,  and  condition,  as 
they  had  before,  in  or  to  the  use,  confidence  or  trust,  that 
was  or  shall  be  in  them."  [Id.,  Sec.  3.] 

"  Any  person  claiming  right  or  title  to  lands,  tenements  or 
hereditaments,  although  he  she  or  they  may  be  out  of  pos- 
session, and  notwithstanding  there  may  be  an  adverse  pos- 
session thereof,  may  sell,  convey  and  transfer  his  or  her  in- 
terest in  and  to  the  same,  in  as  full  and  complete  a  manner 
as  if  he  or  she  were  in  the  actual  possession  of  the  lands 
and  premises  intended  to  be  conveyed  ;  and  the  grantee  or 
grantees  shall  have  the  safrie  right  of  action  for  the  recovery 
thereof,  and  shall  in  all  respects  derive  the  same  benefit  and 
advantages  therefrom,  as  if  the  grantor  or  grantors  had  been 


LAND  TITLES  IN 

in  the  actual  possession  at  the  time  of  executing  the  con- 
veyance." [Id.,  Sec.  4.] 

"  No  estate  in  joint  tenancy  in  any  lands,  tenements,  or 
hereditaments,  shall  be  held  or  claimed  under  any  grant,  de- 
vise or  conveyance  whatsoever,  heretofore  or  hereafter  made, 
other  than  to  executors  and  trustees,  unless  the  premises 
therein  mentioned  shall  expressly  be  thereby  declared  to 
pass,  not  in  tenancy  in  common,  but  in  joint  tenancy ;  and 
every  such  estate,  other  than  to  executors  or  trustees,  (unless 
otherwise  expressly  declared,  as  aforesaid,)  shall  be  deemed 
to  be  in  tenancy  in  common."  [R.  S.,  104,  Sec.  5.] 

"  In  cases  where,  by  the  common  law,  any  person  or  per- 
sons might  hereafter  become  seized,  in  fee  tail,  of  any  lands, 
tenements  or  hereditaments,  by  virtue  of  any  devise,  gift, 
grant  or  other  conveyance,  hereafter  to  be  made,  or  by  any 
other  means  whatsoever,  such  person  or  persons,  instead  of 
being  or  becoming  seized  thereof  in  fee  tail,  shall  be  deemed 
and  adjudged  to  be,  and  become  seized  thereof,  for  his  or  her 
natural  life  only,  and  the  remainder  shall  pass  in  fee  simple 
absolute,  to  the  person  or  persons  to  whom  the  estate  tail 
would,  on  the  death  of  the  first  grantee,  devisee  or  donee  in 
tail,  first  pass,  according  to  the  course  of  the  common  lav\r, 
by  virtue  of  such  devise,  gift,  grant  or  conveyance."  [Id., 
Sec.  6.] 

"  If  any  person  shall  sell  and  convey  to  another,  by  deed 
or  conveyance,  purporting  to  convey  an  estate  in  fee  simple 
absolute,  in  any  tract  of  land  or  real  estate,  lying  and  being 
in  this  State,  not  then  being  possessed  of  the  legal  estate  or 
interest  therein  at  the  time  of  the  sale  and  conveyance ;  but 
after  such  sale  and  conveyance,  the  vender  shall  become  pos- 
sessed of,  and  confirmed  in  the  legal  estate,  to  the  land  or 
real  estate  so  sold  and  conveyed,  it  shall  be  taken  and  held 
to  be  in  trust,  and  for  the  use  of  the  grantee  or  vendee  ;  and 
the  conveyance  aforesaid  shall  be  held  and  taken,  and  shall 
be  as  valid  as  if  the  grantor  or  vendor  had  the  legal  estate  or 


ILLINOIS.  253 

interest  at  the  time  of  said  sale  or  conveyance/'  [Id., 
Sec.  7.] 

"Every  person  in  the  actual  possession  of  lands  or  tene- 
ments, under  claim  and  color  of  title,  made  in  good  faith, 
and  who  shall  for  seven  successive  years  continue  in  such 
possession,  and  shall  also,  during  said  time,  pay  all  taxes 
lea-ally  assessed  on  such  lands  or  tenements,  shall  be  held 
and  adjudged  to  be  the  legal  owner  of)  said  lands  or  tene- 
ments, to  the  extent  and  according  to  the  purport  of  his  or 
her  paper  title.  All  persons  holding  under  such  possession 
by  purchase,  devise  or  descent,  before  said  seven  years  shall 
have  expired,  and  who  shall  continue  such  possession,  and 
continue  to  pay  the  taxes  as  aforesaid,  so  as  to  complete  the 
possession  and  payment  of  taxes  for  the  term  aforesaid,  shall 
be  entitled  to  the  benefit  of  this  section."  [Id.,  Sec.  8.] 

"  Whenever  a  person  having  color  of  title,  made  in  good 
faith,  to  vacant  and  unoccupied  land,  shall  pay  all  taxes  le- 
gally assessed  thereon,  for  seven  successive  years,  he  or  she 
shall  be  deemed  and  adjudged  to  be  the  legal  owner  of  said 
vacant  and  unoccupied  land,  to  the  extent  and  according  to 
the  purport  of  his  or  her  paper  title.  All  persons  holding 
under  such  taxpayer  by  purchase,  devise  or  descent,  before 
said  seven  years  shall  have  expired,  and  who  shall  continue 
to  pay  the  taxes  as  aforesaid,  so  as  to  complete  the  payment 
of  taxes  for  the  term  aforesaid,  shall  be  entitled  to  the  benefit 
of  this  section :  Provided,  however,  if  any  person  having  a 
better  paper  title  to  said  vacant  and  unoccupied  land,  shall, 
during  the  said  term  of  seven  years,  pay  the  taxes  assessed 
on  said  land  for  any  one  or  more  years  of  the  said  term  of 
seven  years,  then,  and  in  that  case,  such  taxpayer,  his  heirs 
and  assigns,  shall  not  be  entitled  to  the  benefit  of  this  sec- 
tion." [Id.,  Sec.  9.] 

"  The  two  preceding  sections  shall  not  extend  to  lands  or 
tenements  owned  by  the  United  States  or  this  State,  nor  to 
school  and  seminary  lands,  nor  to  lands  held  for  the  use  of 


LAND  TITLES  IN 

religious  societies,  nor  to  lands  held  for  any  public  purpose; 
nor  shall  they  extend  to  lands  or  tenements  when  there 
shall  be  an  adverse  title  to  such  lands  or  tenements,  and 
the  holder  of  such  adverse  title  is  under  the  age  of  twenty- 
one  years,  insane,  imprisoned,  femme  covert,  out  of  the 
limits  of  the  United  States,  and  in  the  employment  of  the 
United -States  or  of  this  State  :  Provided  such  person  shall 
commence  an  action  to  recover  such  lands  or  tenements  so 
possessed  as  aforesaid,  within  three  years  after  the  several 
disabilities  herein  enumerated  shall  cease  to  exist,  and  shall 
prosecute  such  action  to  judgment ;  or,  in  case  of  vacant  and 
unoccupied  land,  shall  within  the  time  last  aforesaid,  pay  to 
the  person  or  persons  who  have  paid  the  same,  all  the  taxes, 
with  interest  thereon,  at  the  rate  of  twelve  per  cent  per  an- 
num, that  have  been  paid  on  said  vacant  and  unoccupied 
land."  [Id.,  Sec.  10.] 

"  All  deeds  whereby  any  estate  of  inheritance  in  fee  sim- 
ple shall  hereafter  be  limited  to  the  grantee  and  his  heirs,  or 
other  legal  representatives,  the  words  "  grant,"'  "  bargain," 
"sell,"  shall  be  adjudged  an  express  covenant  to  the  grantee, 
his  heirs,  and  other  legal  representatives,  to  wit :  that  the 
grantor  was  seized  of  an  indefeasible  estate,  in  fee  simple, 
free  from  incumbrances,  done  or  suffered  from  the  grantor, 
except  the  rents  and  services  that  may  be  reserved,  as  also 
for  quiet  enjoyment  against  the  grantor,  his  heirs  and  as- 
signs, unless  limited  by  express  words  contained  in  such 
deed.  And  the  grantee,  his  heirs,  executors,  administrators 
and  assigns,  may  in  any  action  assign  breaches,  as  if  such 
covenants  were  expressly  inserted :  Provided,  always,  that 
this  law  shall  not  extend  to  lease  at  rack  rent,  or  leases  not 
exceeding  one  and  twenty  years,  where  the  actual  posses- 
sion goes  with  the  lease."  [R.  S.,  105,  Sec.  10.] 

"  Every  deed  conveying  real  estate  which  by  anything 
therein  contained  shall  appear  to  have  been  intended  only 
as  a  security  in  the  nature  of  a  mortgage,  though  it  be  an 


ILLINOIS.  255 

absolute  conveyance  in  terms,  shall  be  considered  as  a  mort- 
gage. [Id.,  Sec.  12.] 

"  Every  estate  in  lands,  which  shall  be  granted,  conveyed 
or  devised  to  one,  although  other  words,  heretofore  necessary 
to  transfer  an  estate  of  inheritance,  be  not  added,  shall  be 
deemed  a  fee  simple  estate  of  inheritance,  if  a  less  estate  be 
not  limited  by  express  words,  or  do  not  appear  to  have 
been  granted,  conveyed  or  devised  by  construction  or  opera- 
tion of  law."  [Id.,  Sec.  13.] 

"  When  an  estate  hath  been,  or  shall  be,  by  any  convey- 
ance limited  in  remainder  to  the  son  or  daughter,  or  to  the 
use  of  the  son  or  daughter  of  any  person,  to  be  begotten, 
such  son  or  daughter,  born  after  the  decease  of  his  or  her 
father,  shall  take  the  estate  in  the  same  manner  as  if  he  or 
she  had  been  born  in  the  lifetime  of  the  father,  although  no 
estate  shall  have  been  conveyed  to  support  the  contingent 
remainder  after  his  death."  [Id.,  Sec.  4.] 

"  All  aliens  residing  in  this  State  may  take  by  deed,  will 
or  otherwise,  lands  and  tenements,  and  any  interest  therein, 
and  alienate,  sell,  assign  and  transmit  the  same  to  their  heirs 
or  any  other  persons,  whether  such  heirs  or  other  persons 
be  citizens  of  the  United  States  or  not,  in  the  same  manner 
as  natural  born  citizens  of  the  United  States,  or  of  this  State, 
might  do  ;*  and  upon  the  decease  of  any  alien  having  title  to, 
or  interest  in,  any  lands  or  tenements,  such  lands  and  tene- 
ments shall  pass  and  descend  in  the  same  manner  as  if  such 
alien  were  a  citizen  of  the  United  States,  and  it  shall  be  no 
objection  to  any  person  having  an  interest  in  such  estate,  that 
they  are  not  citizens  of  the  United  States  ;  but  all  such  per- 
sons shall  have  the  same  rights  and  remedies,  and  in  all 
things  be  placed  on  the  same  footing,  as  natural  born  citizens 
and  actual  residents  of  the  United  States."*  [Id.,  47,  Sec.  1.] 

*  The  Legislatures  of  the  States  respectively  have  the  right  to  regulate  estates 
by  enactment,  under  the  restrictions  of  their  constitutions,  and  that  of  the  General 
Government.  [9  Wheaton,  665.] 


256.  EXECUTION  OF  DEEDS  IN 


VII.  THE  EXECUTION  OF  DEEDS  AND  MORTGAGES  IN 
ILLINOIS. 

The  Revised  Statutes  of  Illinois  provide  that  all  deeds  and 
instruments  of  writing,  for  the  conveyance  or  incumbrance 
of  real  estate,  or  any  interest  therein,  shall  be  signed  and 
sealed  by  the  party  or  parties  executing  the  same,  in  proper 
person,  or  by  an  attorney  or  lawful  agent,  thereunto  duly  au- 
thorized. [R.  S.,  105,  Sec.  16,  24] 

Conveyances  may  be  written  or  printed,  or  partly  written 
and  partly  printed  ;  and  although  no  prescription  exists  as  to 
their  form,  they  must  nevertheless  set  forth  the  names  and  res- 
idence of  the  parties,  the  land  intended  to  be  conveyed  and 
the  terms  and  conditions  of  the  grant.  They  are  also  requir- 
ed to  be  legible,  perspicuous,  and  to  evince  the  purpose  of 
the  grantor  or  grantors  therein  to  convey  to  the  grantee  or 
grantees  the  premises  described.  They  must  be  upon  paper, 
parchment,  or  some  other  similar  material,  susceptible  of  de- 
livery and  record.  [Breese's  Appendix.] 

They  must  be  signed.  The  statutes  provide  "  that  they 
shall  be  subscribed  by  the  party  or  parties  thereto,  in  proper 
person,"  [Id.,  Sec.  16,]  yet,  as  "  letters  of  attorney,  or  agency, 
authorizing  the  granting,  selling,  conveying,  assuring,  releas- 
ing or  transferring,  and  for  the  acknowledging  of  grants, 
sales,  leases  and  assurances,"  are  recognized  as  valid  instru- 
ments, it  is  presumed  that  the  two  provisions,  when  taken 
together,  fully  authorize  the  subscribing  of  a  deed  by  an  at- 
torney of  the  grantor,  and  constitute  him  in  such  case,  a  party, 

The  mode  in  which  titles  shall  inure,  or  pass,  must  be  exclusively  the  subject  of 
the  laws  of  the  country  where  the  estate  lies.  [7  C ranch,  112.] 

The  title  granted  by  the  State,  or  by  the  United  States,  vests  the  grantee  with  a 
title,  notwithstanding  the  land  shall  be  at  the  time  in  the  possession  of  the  native 
proprietors.  [8  Wheaton,  543.] 

The  Illinois  and  Piankeshaw  Indian  grants  made  prior  to  1775  cannot  be  recog- 
nized by  the  courts  of  the  United  States.  [Id.,  546.] 

Lands  in  Illinois  that  were  confirmed  to  the  settlers  by  the  Governor  of  the 
northwestern  territory,  were  released  from  any  further  claims,  on  the  part  of  the 
United  States.  [Breese,  236.] 


ILLINOIS.  257 

within  the  meaning  of  the  statute.  But  no  agent  or  attor- 
ney can  legally  subscribe  a  deed  for  his  principal,  unless  he 
shall  have  been  thereunto  authorized  by  an  instrument  in 
writing,  executed  and  acknowledged  by  his  principal,  with 
all  the  formalities  required  in  the  execution  of  a  deed. 

They  must  be  attested.  At  least  one  witness  to  their 
execution  is  necessary,  when  they  are  not  acknowledged 
previous  to  their  delivery.  The  language  of  the  act  upon  this 
subject  is  ambiguous  concerning  the  necessity  of  witnesses 
in  any  other  case,  yet  as  the  term  "  witnesses"  is  often  used  in 
the  revision  of  1845,  in  connection  with  the  subject  of  convey- 
ances, it  is  suggested  to  non-residents  that  it  were  well  to  have 
one  subscribing  witness  to  all  deeds,  at  least,  until  such  stat- 
ute receive  a  judicial  construction  by  the  courts. 

They  must  be  sealed.  An  instrument  in  writing  is  not  a 
deed  according  to  the  legal  signification  of  that  term  unless 
the  same  shall  be  sealed.  The  statute,  however,  admits  a 
scrawl,  for  a  substitute.  "  Any  instrument  of  writing  to  which 
the  maker  shall  affix  a  scrawl  by  way  of  a  seal,  shall  be  of 
the  same  effect  and  obligation  to  all  intents,  as  if  the  same 
were  sealed."  fid.,  421,  Sec.  56.]  The  mode  usually  adopt- 
ed by  grantors  is  to  flourish  an  indented  circle  with  a  pen  at 
the  right  of  the  signature,  and  to  insert  therein  the  initials 
L.  S.,  as  an  indication  that  the  flourish  was  intended  as  a 
seal;  the  statute  being  that  the  scrawl,  to  be  valid,  must  be 
affixed  "  by  way  of  a  seal." 

Deeds  take  effect  only  from  the  time  of  their  delivery ; 
[Breese,  278,]  and  as  to  creditors  and  subsequent  purchasers, 
only  from  the  time  of  the  filing  thereof  for  record.*  [R.  S., 
108,  Sec.  21.] 

All  persons  of  full  age,  except  femmes  covert,  idiots  and 
lunatics,  are  entitled  to  convey  real  estate,  subject  to  the  prc- 

*  Delivery  of  a  deed  is  necessary  to  the  transfer  of  the  title  of  the  grantor  thereby. 
Breese,  278.]  Deeds  cannot  take  effect  until  they  are  delivered  to  the  grantee,  or 
to  some  one  acting  in  his  behalf.  [2  Ham.,  268.] 

11* 


258        THE  PROOF  AND  ACKNOWLEDGMENT  OF  DEEDS  IN 

visions  of  the  Statute.  A  femme  covert  may  relinquish  her 
right  of  dower  in  any  of  the  real  estate  of  her  husband,  by 
joining  him  in  a  deed  of  conveyance  and  acknowledging  the 
same  as  mentioned  in  the  succeeding  article ;  but  no  cove- 
nant or  warranty  contained  in  any  such  deed  or  conveyance, 
can  in  any  manner  bind  or  affect  such  woman  or  her  heirs, 
further  than  to  convey  from  her  and  her  heirs  effectually, 
<(  her  right  and  interest  expressed  to  be  granted  or  conveyed 
in  such  deed  or  conveyance.  [Id.,  106,  Sec.  17.] 

Deeds  pass  the  incidents  as  well  as  the  principal,  and 
merge  all  prior  and  cotemporaneous  negotiations  and  agree- 
ments in  parol  concerning  the  premises  conveyed.  If  they 
contain  the  words  "grant"  "bargain,"  "sell,"'  they  are  ad- 
judged to  express  a  covenant  to  the  grantor  and  his  heirs  and 
representatives,  that  the  grantor  was  seized  of  an  indefeasi- 
ble estate,  in  fee  simple,  free  from  incurnbrances  done  or  suf- 
fered by  the  grantor,  except  the  rents  and  devises  that  may 
be  reserved  ;  and  also  for  quiet,  enjoyment  against  the  grantor, 
his  heirs  and  assigns,  unless  limited  by  express  words  con- 
tained in  such  deed."  [Id.,  105,  Sec.  11.] 

"  Every  deed  conveying  real  estate,  which  by  anything 
therein  contained  shall  appear  to  have  been  intended  only  as 
a  security  in  the  nature  of  a  mortgage,  though  it  be  an  abso- 
lute conveyance  in  terms,  shall  be  considered  as  a  mortgage." 
[Id.,  Sec.  12.] 

VIII.  THE  PROOF  AND  ACKNOWLEDGMENT  OF  DEEDS  ANli 
MORTGAGES  IN  ILLINOIS. 

All  deeds,  mortgages  and  other  instruments  for  the  con- 
veyance of  real  estate  in  this  State,  or  any  interest  therein, 
whereby  the  rights  of  any  person  may  be  affected  in  law  or 
equity,  are  required  to  be  acknowledged  or  proved  before  one 
of  the  following  officers,  viz :  When  acknowledged  or  proven 
in  Illinois,  before  any  Judge,  Justice,  or  Clerk  of  any  Court 
of  Record  therein  having  a  seal,  or  before  any  Mayor  of  a 


ILLINOIS. 


259 


city,  Notary  Public,  or  Commissioner  authorized  to  take  the 
acknowledgment  of  deeds,  having  a  seal,  or  any  Justice  of 
the  Peace.  When  acknowledged  or  proved  without  the 
State  of  Illinois,  and  within  the  United  States  or  their  terri- 
tories, or  the  District  of  Columbia;  before  an  officer  commis- 
sioned for  the  purpose  by  the  Governor  of  Illinois,  in  con- 
formity with  the  laws  of  such  State,  Territory  or  District, 
provided,  that  any  Clerk  of  a  Court  of  Record  within  such 
State,  Territory  or  District,  shall,  under  his  hand  and  the 
seal  of  such  court,  certify  that  such  deed  or  instrument  is 
executed  and  acknowledged,  or  proved  in  conformity  with 
the  laws  of  such  State,  Territory  or  District.  When  ac- 
knowledged or  proven  without  the  United  States,  before  any 
court  of  any  Republic,  State,  Kingdom,  or  Empire,  having  a 
seal,  or  any  Mayor  or  chief  officer  of  any  city  or  town  hav- 
ing a  seal,  or  before  any  officer  authorized  by  the  laws  of 
such  foreign  country,  to  take  acknowledgments  of  convey- 
ances of  real  estate,  if  he  have  a  seal — such  deed  to  be  attest- 
ed by  the  official  seal  of  such  court  or  officer ;  and  in  case 
such  acknowledgment  is  taken  other  than  before  a  Court  of 
Record,  or  Mayor,  or  chief  officer  of  a  town  having  a  seal, 
proof  that  the  officer  taking  such  acknowledgment  was  duly 
authorized  by  the  laws  of  his  country  to  do  so,  shall  accom- 
pany the  certificate  of  such  acknowledgment."  [R.  S.,  111., 
105,  Sec.  16.] 

Superadded  to  these  provisions  are  others^  concerning  the 
proof  or  acknowledgment  of  deeds  by  married  women  above 
the  age  of  eighteen  years.  That  their  execution  of  deeds  and 
mortgages  may  be  in  all  cases  voluntary  and  free,  it  is  required 
that  in  addition  to  the  foregoing  requirements,  "such  wife  shall 
appear  before  some  Judge  or  other  officer,  authorized  to  take 
acknowledgments,  to  whom  she  is  known,  or  proved  by  a 
creditable  witness  to  be  the  person  who  executed  such  deed 
or  conveyance,  and  such  Judge  shall  make  her  acquainted 
with,  and  explain  to  her  the  contents  of  such  deed  or  con- 


260        THE  PROOF  AND  ACKNOWLEDGMENT  OF  DEEDS  IN 

veyance,  and  examine  her  separate  and  apart  from  her  hus- 
band, whether  she  executed  the  same  voluntarily,  freely,  and 
without  compulsion  of  her  said  husband ;  and  if  such  wo- 
man shall,  upon  such  examination,  acknowledge  such  deed 
and  conveyance  to  be  her  act  and  deed — that  she  executed 
the  same  voluntarily  and  freely  without  compulsion  of  her 
husband,  and  does  not  wish  to  retract,  the  said  Judge  or  oth- 
er officer  shall  make  a  certificate  endorsed  on,  or  annexed  to 
such  deed  or  conveyance,  stating  that  such  woman  was  per- 
sonally known  to  the  said  Judge  or  other  officer,  or  proved 
by  a  witness  (naming  him)  to  be  the  person  who  subscribed 
such  deed  or  conveyance,  and  setting  forth  the  examination 
and  acknowledgment  aforesaid,  and  that,  the  contents  were 
made  known  to  her ;  and  such  deed  (being  acknowledged  or 
proved  according  to  law  as  to  the  husband)  shall  be  as  effec- 
tual in  law  as  if  executed  while  sole  and  unmarried."  [Id., 
Sec.  17.] 

It  will  be  observed  that  every  requirement  concerning  the 
proof  and  acknowledgment  calls  for  certain  acts  on  the  part 
of  both  the  maker  of  a  deed  and  the  acknowledging  officer. 
Those  acts,  and  each  and  every  of  them,  are  essential.  Hav- 
ing been  done,  they  are  facts,  not  conclusions,  and  must  be 
detailed  at  length  in  the  certificate  of  such  officer.  Herein, 
much  difficulty  often  occurs  ;  too  much  care,  therefore,  can- 
not be  taken  by  acknowledging  officers. 

"  Any  conveyance  or  assignment  of  certificates  of  the  pur- 
chase of  land  sold  for  taxes  by  the  Auditor  of  Public  Accounts, 
may  be  acknowledged  before  said  Auditor,  and  such  ac- 
knowledgment shall  be  deemed  good  and  valid."  [Id.,  Sec. 
19.]  But  whomsoever  assumes  the  duty  of  taking  the  ac- 
knowledgment of  deeds,  be  it  Auditor,  Judge,  or  other  officer, 
is  required  to  know  the  person  or  persons  appearing  before 
him  to  make  such  acknowledgment,  or  by  a  creditable  wit- 
ness to  be  examined  by  himself,  to  receive  proof  of  his  or  their 
identity,  and  that  he,  she  or  they  are  in  very  fact  the  person 


ILLINOIS.  261 

or  persons  described  in  and  who  executed  the  conveyance  in 
question.  Without  such  knowledge  or  proof  he  is  forbidden 
to  act  in  the  premises,  and  to  certify  his  doings.  And  in  his 
certificate  of  acknowledgment  endorsed  upon  or  annexed  to 
the  conveyance,  he  is  required  and  commanded  to  state  "  that 
such  person  was  personally  known  to  him  to  be  the  person 
whose  name  is  subscribed  to  such  deed  or  writing,  as  having 
executed  the  same,  or  that  he  was  proved  to  be  such  by  a 
creditable  witness,  (naming  him)."  The  precise  information, 
(personal  knowledge  and  proot)  the  courts  regard  as  facts, 
which  are  as  necessary  to  be  set  forth  in  the  certificate,  as 
the  acts  constituting  the  acknowledgment. 

The  execution  of  deeds  may  be  proven  by  a  subscribing 
witness  who  signed  his  name  thereto  as  an  attesting  witness 
in  the  presence  and  at  the  request  of  the  grantor.  When 
such  instances  occur  another  duty  devolves  on  the  officer. 
Before  receiving  his  testimony,  the  officer  is  required  to  ascer- 
tain from  his  own  knowledge  or  by  a  creditable  witness  that 
he  is  a  subscribing  witness  to  the  deed.  This  done,  the  offi- 
cer may  swear  him  and  proceed  to  take  his  testimony  ;  "and 
if  it  shall  appear  from  the  testimony  of  such  subscribing 
witness  that  the  person  whose  name  appears  subscribed  to 
such  deed  or  writing,  is  the  real  person  who  executed  the 
same,  and  that  the  witness  subscribed  his  name  as  such,  in 
his  presence  and  at  his  request,  the  Judge  or  officer  shall 
grant  a  certificate  stating  that  the  person  testifying  as  sub- 
scribing witness  was  personally  known  to  him  to  be  the  per- 
son whose  name  appears  to  such  deed  as  a  witness  of  the 
execution  thereof,  or  that  he  was  proved  to  be  such  by  a 
creditable  witness,  (naming  him)  and  stating  the  proof  made 
by  him.3'  [Id.,  107,  Sec.  20.] 

Where  the  grantor  and  witness  shall  be  dead,  it  is  provided 
that  the  officer  "  may  take  proof  of  the  handwriting  of  such 
deceased  party  and  subscribing  witness  or  witnesses,  (if  any) 
and  the  examination  of  a  competent  and  creditable  witness, 


262  RECORDING  OF  DEEDS  AND  MORTGAGES  IN 

who  shall  state  on  oath  or  affirmation,  that  he  personally 
knew  the  person,  whose  hand  writing  he  is  called  to  prove, 
and  well  knew  his  signature,  (stating  his  means  of  know- 
ledge,) and  that  he  believes  the  name  of  such  person  sub- 
scribed to  such  deed  or  writing,  as  party  or  witness,  (as  the 
case^may  be,)  was  thereto  subscribed  by  such  person  ;  and 
when  the  handwriting  of  the  grantor  or  person  executing 
such  deed  or  writing,  and  of  one  subscribing  witness,  (if  any 
there  be,)  shall  have  been  proved  as  aforesaid,  the  Judge  or 
officer  shall  grant  a  certificate  thereof,  stating  the  proof  afore- 
said." [Id.,  Sec.  21.] 

IX.  THE  RECORDING  OP  DEEDS  AND  MORTGAGES  IN  IL- 
LINOIS, AND  THE  EFFECT  THEREOF. 

The  Statutes  provide  that  deeds  and  other  instruments  re- 
lating to,  or  affecting  the  title  to  real  estate  in  Illinois,  shall  be 
recorded  in  the  county  in  which  such  real  estate  is  situated ; 
but  if  such  county  is  not  organized,  then  they  shall  be  record- 
ed in  the  county  to  which,  for  judicial  purposes,  such  unor- 
ganized county  is  attached.  R.  S.,  108,  Sec.  22. 

"All  deeds,  mortgages,  and  other  instruments  of  writing 
which  are  required  to  be  recorded,  shall  take  effect,  and  be 
in  force  from  and  after  the  time  of  filing  the  same  for  record, 
and  not  before,  as  to  all  creditors  and  subsequent  purchasers 
without  notice ;  and  all  such  deeds  and  title  papers  shall  be 
adjudged  void  as  to  all  such  creditors  and  subsequent  pur- 
chasers, without  notice,  until  the  same  shall  be  filed  for 
record."  [Id.,  Sec.  23.] 

All  powers  of  attorney  to  convey  lands  are  required  to  be 
recorded  before  any  deed  executed  under  the  authority  con- 
tained in  the  power  goes  upon  record.  [Id.,  Sec.  24.] 

From  the  sections  above  cited  it  will  be  seen  that  a  neglect 
to  record  deeds  and  mortgages,  largely  jeopards  the  rights  of 
the  alienee.  Registry  acts  are  mainly  designed  for  the  preven- 
tion of  fraud,  by  means  of  the  notice  given  to  all  the  world 


ILLINOIS.  263 

by  the  record.  As  between  two  grantees,  the  one  whose 
deed  or  mortgage  is  first  put  on  record  holds  as  against  the 
other,  provided  he  have  no  knowledge  of  the  other  deed. 
Indeed  no  deed  or  mortgage  takes  effect  as  against  creditors 
arid  subsequent  purchasers,  without  notice,  until  the  same 
shall  be  filed  for  record. 

In  Illinois,  the  people  biennially  elect  a  County  Recorder 
who,  when  elected,  is  commissioned  by  the  Governor,  and 
required  to  reside  at  the  county  seat,  and  to  keep  a  fair  book 
or  books  of  record,  in  which  to  make  entry  of  every  deed 
or  writing  brought  into  his  office  to  be  recorded,  mentioning 
therein  the  date,  the  parties,  and  the  place  where  the  lands, 
tenements,  or  hereditaments  granted  or  conveyed  by  the  said 
deed  or  writing  are  situate,  dating  the  entry  on  the  day  on 
which  such  deed  or  mortgage  was  brought  into  his  office,  and 
to  record  all  such  deeds  and  writings  in  regular  succession, 
according  to  the  priority  of  time  of  their  being-  brought  into 
said  office  ;  and  also  to  make  and  keep  a  complete  alphabet- 
ical index  to  each  record  book,  showing  the  page  on  which 
each  instrument  is  recorded,  with  the  names  of  the  parties 
thereto.  He  is  also  required  to  give  a  receipt  to  the  person 
bringing  any  deed  or  writing  to  be  recorded,  bearing-  date  on 
the  same  day  as  the  entry,  and  containing  the  abstract  afore- 
said, and  for  which  entry  and  receipt  he  is  entitled  to  no  fees, 
[R,  S.,  432,  Sec.  7;]  but  for  tho  recording  he  is  entitled  to  fif- 
teen cents  per  hundred  words,  and  twenty-five  cents  for  a 
certificate  that  the  same  has  been  recorded.  [Id.,  248, 
Sec.  23.] 

But  to  entitle  a  deed  or  mortgage  to  go  upon  record,  it 
must  be  duly  acknowledged  or  proven,  and  in  some  cases 
duly  authenticated.  Deeds  and  other  conveyances,  ac- 
knowledged or  proven  in  the  State  before  any  Judge,  Justice 
of  the  Supreme  or  Circuit  Court,  or  before  any  court  or  offi- 
cer having  a  seal,  and  attested  by  such  seal,  arc  entitled  to 
record  without  further  attestation.  But  when  acknowledged 


264  RECORDING  OF  DEEDS  AND  MORTGAGES  IN 

or  proven  before  a  Justice  of  the  Peace,  residing  within  the 
State,  the  certificate  of  the  Clerk  of  the  County  Commis- 
sioners' Court,  of  the  proper  county,  under  his  seal  of  office, 
that  the  person  taking  such  proof  or  acknowledgment  was  a 
Justice  of  the  Peace  at  the  time  of  taking  the  same,  must  be 
produced  to  the  Recorder;  and  when  acknowledged  or  proved 
out  of  the  State,  before  an  officer  other  than  a  Commissioner 
of  this  State  residing  there,  the  certificate  of  acknowledg- 
ment or  proof  must  be  accompanied  with  a  certificate  of  a 
Clerk  of  a  Court  of  Record  within  the  State,  Territory,  or 
District  where  the  acknowledging  officer  resides,  under  the 
hand  of  such  Clerk  and  the  seal  of  his  court,  setting  forth 
that  the  deed  or  instrument  is  executed,  acknowledged  or 
proved  in  conformity  with  the  laws  of  such  State,  Territory, 
or  District. 

The  conveyance,  certificate  of  acknowledgment,  or  proof 
and  the  certificate  of  authentication,  go  upon  record  together ; 
and  for  recording  the  whole  thereof,  the  Recorder  is  entitled 
to  be  paid. 

Satisfaction  of  mortgages  may  be  entered  upon  record  by 
the  mortgagees  in  the  Recorder's  office,  and  the  record  will 
thereby  be  effectually  canceled.  If  not  so  done,  the  cancel- 
ation  maybe  effected  by  the  mortgagee's  signing  and  sealing 
in  the  presence  of  an  attesting  witness,  and  acknowledging 
in  form,  satisfaction  thereof  in  writing ;  which  instrument, 
on  being  produced  to  the  Recorder,  is  sufficient  authority  for 
him  to  discharge  the  record.*  [R.  S.,  110,  Sec.  37.] 

*  Non-residents  may  discover  from  this  note  the  several  counties  or  recording  dis- 
tricts in  small  capital  letters,  with  the  name  of  the  county  seat  of  each  annexed, 
viz:  ADAMS,  Quincy;  ALEXANDER,  Unity  ;  BOND,  Greenville;  BOONE,  Belvidere; 
BROWN,  Mount  Sterling ;  BUREAU,  Princeton;  CALHOUN,  Gilead;  CARROLL,  Sa- 
vannah; Cass,  Virginia ;  CHAMPAIGN,  Urbana;  CHRISTIAN,  Edinburg  ;  CLARKE, 
Marshall;  CLAY,  Lewisville;  CLINTON,  Carlyle;  COLES,  Charleston;  COOK,  Chi- 
cago; CRAWFORD,  Palestine  ;  DE  KALB,  Sycamore;  DE  WITT,  Clinton;  Du  PAGE, 
Napierville;  EDGAR,  Paris;  EDWARDS,  Albion;  EFFINGHAM,  Ewington ;  FAY- 
ETTE,  Vandalia;  FRANKLIN,  Benton;  FULTON,  Lewiston ;  GALLATIN,  Equality; 
GREENE,  Carrollton ;  HAMILTON,  McLeansboro' ;  HANCOCK,  Carthage ;  HARDIK, 


ILLINOIS.  265 

±.     WILLS  OF    REAL  ESTATE    IN  ILLINOIS. 

This  feature  of  the  Athenian  economy  has  commended 
itself  to  favor  throughout  Christendom ;  and  at  this  day,  the 
franchise  is  commensurate  with,  and  a  concomitant  of  free- 
hold estates.  In  the  American  Republic,  each  State  defines 
for  itself  the  limits  of  the  privilege,  and  by  arbitrary  statutes, 
regulates  the  manner  of  its  exercise. 

The  statutes  of  Illinois  provide  that  every  person,  aged 
twenty-one  years,  if  a  male,  or  eighteen  years,  if  a  female, 
or  upwards,  and  not  married,  being  of  sound  mind  and  mem- 
ory, shall  have  power  to  devise  all  the  estate,  right,  title  and 
interest,  in  possession,  reversion  or  remainder,  which  he  or 
she  hath,  or  at  the  time  of  his  or  her  death  shall  have,  of,  in 
and  to  any  lands,  tenements,  hereditaments,  annuities  or 
rents,  charged  upon  or  issuing  out  of  them  ;  or  goods  and 
chattels  or  personal  estate,  of  every  description  whatsoever, 
by  will  or  testament ;  all  persons  of  the  age  of  seventeen 
years,  and  of  sound  mind  and  memory,  (married  women  ex- 
cepted,)  have  power  to  dispose  of  their  personal  estate,  by 
will  or  testament ;  and  married  women  have  power  to  dis^ 
pose  of  their  separate  estate,  both  real  and  personal,  by  will 

Elizabethtown  ;  lln.xuy,  Mornstown ;  IROQUOIS,  Montgomery  ;  JACKSON,  Browns- 
ville; JASPKR,  Newton ;  JEFFERSON,  Mount  Vernon;  JERSEY,  Jcrseyvillc ;  Jo- 
DAVIESS,  Galena ;  JOHNSON,  Vienna;  KANE,  Geneva;  KNOX,  Knoxville ;  LAKE, 
Little  Fort;  LA  SALLE,  Ottawa;  LAWRENCE,  Lawrenceville ;  LIE,  Dixon  ;  Liv- 
IN<;.«TON,  Pontiac;  LOGAN,  Postville ;  MACON,  Decatur;  MACOUPIN,  Carlinville ; 
MADISON,  Edwardsville ;  MARION,  Salem;  MARSHALL,  Lacon;  MCDONOUGH, 
Maromb;  McHENRY,  McHenry;  McLEAN,  Bloomington;  MENARD,  Petersburg} 
MERCER,  Millersburg;  MONROE,  Waterloo  ;  MONTGOMERY,  Hillsboro' ;  MORGAN, 
Jacksonville;  OGLE,  Oregon  City  ;  PEORIA,  Peoria;  PERRY,  Pinckneyville ;  PIKE, 
Pittsfield;  POPE,  Golcomla;  PUTNAM,  Hennepin ;  RANDOLPH,  Kaskaskia;  ROCK 
ISLAND,  Rock  Island;  SANGAMON,  Springfield;  SCHUYLER,  Rushville ;  SCOTT, 
Winchester;  SHELBY,  Shelby ville;  STARK,  Toulon;  STEPHENSON,  Freepoit ;  ST. 
GLAIR,  Belleville;  TAZEYVELL,  Tremont;  UNION,  Jonesboro' ;  VERMILION.  Dan- 
ville;  WABASH,  Mt.  Carmel ;  WARREN,  Monmouth;  WASHINGTON,  Nashville; 
WAYNE,  Fail-field;  WHITE,  Carmi;  WHITESIDE,  Sterling;  WILL,  Juliet;  WIL- 
LIAMSON, Bai  ub  ridge  ;  WIN. NEB  AGO,  Rocktbrd.  [HaikeFs  Gay..,  290.  "J 

12 


266  DEVISES  IN 

or  testament,  in  the  same  manner  as  other  persons.     [R.  S., 
536,  Sec.  1.] 

The  statute  also  declares  that  all  wills,  testaments  and  co- 
dicils, by  which  any  land,  tenements,  hereditaments,  annui- 
ties, rents,  or  goods  and  chattels,  are  devised,  shall  be  reduced 
to  writing,  and  signed  by  the  testator  or  testatrix,  or  by  some 
person  in  his  or  her  presence,  or  by  his  or  her  direction,  and 
attested  in  the  presence  of  the  testator  or  testatrix,  by  two  or 
more  credible  witnesses.  [Id.,  Sec.  2.] 

Wills  are  required  to  be  legible,  perspicuous,  and  consistent, 
and  must  not  contain  provisions  that  are  impossible  of  exe- 
cution, or  which  contravene  the  general  policy  of  the  law. 
Hence,  if  trusts  be  created,  or  the  power  of  alienation  be 
suspended  for  any  limited  period,  extreme  care  is  requisite 
on  the  part  of  the  draftsman,  that  such  trust  or  suspension 
is  authorized  by  the  statutes  of  the  State. 

Wills  must  be  certain  in  their  provisions,  and  evince  the 
purpose  and  intent  of  the  testator,  to  devise  his  property  to 
the  beneficiaries  named  therein.  They  will  be  construed 
according  to  the  design  of  the  testator  in  their  execution  ;  yet 
that  design  must  appear  from  the  written  manifesto  of  his 
pleasure.  The  statute  regulations  concerning  their  execu- 
tion are  inflexible,  and  must  be  exactly  complied  with. 

They  must  be  signed.  They  must  not  only  be  reduced 
to  writing,  but  must  be  signed  "by  the  testator  or  testatrix, 
or  by  some  person  in  his  or  her  presence,  and  by  his  or  her 
direction."  [Id.,  536,  Sec.  2.]  The  name  of  the  testator,  at 
length,  should  be  subscribed  thereto  ;  yet,  if  he  be  unable  to 
write,  any  mark  which  he  has  adopted  as  his  sign  manual 
will  suffice  for  a  signature,  if  accompanied  with  the  declara- 
tion that  the  same  is  his  mark.  If  another  write  his  name 
by  his  direction,  the  same  must  be  done  in  his  presence,  or 
otherwise,  such  signature  is  invalid. 

They  'must  be  attested.  Two  witnesses,  at  least,  are  re- 
quired to  be  present  at  the  execution  of  a  will  by  the  testator, 


ILLINOIS.  267 

and  to  attest  the  same  by  subscribing  their  own  proper 
names  thereto  at  the  same  time.  And  not  only  must  there 
be  at  least  two  in  number,  but  both  of  them  are  required  to 
be  "  credible  witnesses,"  and  who  are  not  incompetent  from 
infamy,  interest,  or  any  other  cause,  to  be  sworn  and  exam- 
ined upon  the  probate  of  such  will,  as  to  the  capacity  of  the 
testator,  and  the  circumstances  and  manner  of  its  execution. 
Legatees,  although  competent  to  attest  a  will,  lose  their  lega- 
cies under  it,  over  and  above  what  they  would  otherwise 
have  inherited,  if  there  be  not  two  other  credible  witnesses 
to  the  execution  thereof,  who  have  no  interest  in  the  same. 
[Id.,  Sec.  11.] 

Wills  may  or  may  not  contain  a  provision  for  the  appoint- 
ment of  executors  thereof.  If  they  contain  no  appoint- 
ment, the  court  which  admits  them  to  probate  has  the  power 
to  supply  the  omission,  by  appointing  an  administrator,  with 
the  will  annexed. 

The  statutes  provide,  that  in  no  case  "  where  any  testator 
or  testatrix  shall  by  his  or  her  will,  appoint  his  or  her  debtor 
to  be  his  or  her  executor  or  executrix,  shall  such  appoint- 
ment operate  as  a  release  or  extinguishment  of  any  debt  due 
from  such  executor  or  executrix,  to  such  testator  or  testatrix; 
unless  the  testator  or  testatrix  shall  in  such  will  expressly 
declare  his  or  her  intention  to  devise,  or  release  such  debt ; 
nor  even  in  that  case,  unless  the  estate  of  such  testator  or 
testatrix  is  sufficient  to  discharge  the  whole  of  his  or  her 
just  debts,  over  and  above  the  debt  due  from  such  executor 
or  executrix."  [Id.,  Sec.  12.] 

"  If  after  making  a  last  will  and  testament,  a  child  or 
children  shall  be  born  to  any  testator  or  testatrix,  and  no 
provision  be  made  in  such  will  for  such  child  or  children, 
the  will  shall  not  on  that  account  be  revoked ;  but  unless  it 
shall  appear  by  such  will  that  it  was  the  intention  of  the  tes- 
tator or  testatrix  to  disinherit  such  child  or  children,  the  de- 
vises and  legacies  by  such  will  granted  and  given  shall  be 


268  DEVISES  IN 

abated  in  equal  proportions  to  raise  a  portion  for  such  child 
or  children,  equal  to  that  which  such  child  or  children  would 
have  been  entitled  to  receive  out  of  the  estate  of  such  testa- 
tor or  testatrix,  if  he  or  she  had  died  intestate."  [Id.,  Sec.  13.] 

"  Whenever  a  devisee  or  legatee,  in  any  last  will  and  tes- 
tament, being  a  child  or  grand  child  of  the  testator  or  testa- 
trix, shall  die  before  such  testator  or  testatrix,  and  no  pro- 
vision shall  be  made  for  such  contingency,  the  issue,  if  any 
there  be,  of  such  devisee  or  legatee  shall  take  the  estate  de- 
vised or  bequeathed,  as  the  devisee  or  legatee  would  have 
done  had  he  or  she  survived  the  testator  or  testatrix  :  and  if 
there  be  no  such  issue  at  the  time  of  the  death. of  such  tes- 
tator or  testatrix,  the  estate  disposed  of  by  such  devise  or 
legacy  shall  be  considered  and  treated  in  all  respects  as 
intestate  estate."  [Id.,  Sec.  14.] 

All  codicils  are  required  to  be  executed  in  the  same  man- 
ner as  wills ;  and  "  no  will,  testament  or  codicil  shall  be  re- 
voked, otherwise  than  by  burning,  canceling,  tearing,  or  ob- 
literating the  same,  by  the  testator  himself,  or  in  his  presence, 
by  his  direction  and  consent,  or  by  some  other  will,  testa- 
ment or  codicil,  in  writing,  declaring  the  same,  signed  by 
the  testator  or  testatrix,  in  the  presence  of  two  or  more  wit- 
nesses, and  by  them  attested  in  his  or  her  presence ;  and  no 
words  spoken  shall  revoke  or  annul  any  will,  testament  or 
codicil  in  writing,  executed  as  aforesaid,  in  due  form  of  law." 
[Id.,  Sec.  15.] 

It  is  provided  that  every  devise  of  land  or  any  estate 
therein  by  a  married  man  shall  bar  his  surviving  widow's 
right  of  dower  therein,  unless  otherwise  expressed  in  the 
will ;  but  she  may  elect  whether  she  will  take  such  devise 
or  bequest,  or  whether  she  will  renounce  the  benefit  of  such 
devise  or  bequest,  and  take  her  dower  in  the  lands.  And 
she  will  be  deemed  to  have  elected  to  take  such  jointure  or 
devise,  unless  within  one  year  after  the  authentication  or 
probate  of  the  will  she  shall  deliver  or  transmit  to  the  Court 


ILLINOIS.  269 

of  Probate  of  the  proper  county,  a  written  renunciation.     [Id., 
199,  Sec.  11.] 

XI.  THE  PROBATE  AND  RECORDING  OF  WILLS  IN  ILLINOIS. 

By  Statute  there  shall  be  and  remain  in  each  county  of 
this  State,  a  Court  of  Probate,  to  be  composed  of  one  officer, 
styled  a  Probate  Justice  of  the  Peace.  [R.  S.,  426,  Sec.  1.] 

Probate  Justices  are  elected  biennially  at  "annual  elections," 
and  are  invested  with  ample  powers  for  determining  the 
competency  of  testators,  for  the  examination  of  witnesses 
concerning  wills,  admitting  them  to  probate,  record,  &c.,  and 
of  issuing  letters  testamentary  therein,  or  of  administration 
with  the  wills  annexed.  [Id.,  Sec.  6.] 

Such  courts  are  required  to  set  in  their  respective  counties 
on  the  first  Monday  in  every  month,  and  at  such  other  times 
as  extraordinary  circumstances  may  require,  and  to  continue 
open  until  all  the  business  depending  before  them  shall  be 
disposed  of.  They  are  required  to  have  a  seal  under  which 
to  issue  all  necessary  process ;  and  to  keep  books  in  which 
to  record  their  proceedings  at  length.  [Id.,  Sec.  8.] 

"  When  any  will,  testament  or  codicil  shall  be  exhibited 
in  the  Court  of  Probate,  for  probate  thereof,  it  shall  be  the 
duty  of  the  court  to  receive  the  probate  of  the  same  without 
delay,  and  to  grant  letters  testamentary  thereon,  to  the  person 
or  persons  entitled  ;  and  to  do  all  other  needful  acts  to  enable 
the  parties  concerned  to  make  settlement  of  the  estate  at  as 
early  a  day  as  shall  be  consistent  with  the  rights  of  the  re- 
spective persons  interested  therein :  provided,  however,  that 
if  any  person  interested,  shall  within  five  years  after  the  pro- 
bate of  any  such  will,  testament  or  codicil,  in  the  Court  of 
Probate  as  aforesaid,  appear,  and  by  his  or  her  bill  in  chan- 
cery, contest  the  validity  of  the  same,  an  issue  at  law  shall 
be  made  up,  whether  the  writing  produced,  be  the  will  of 
the  testator  or  testatrix,  or  not ;  which  shall  be  tried  by  a  jury 
in  the  Circuit  Court  of  the  county  wherein  such  will,  testa- 


270  PROBATE  AND  RECORDING  OF  WILLS  IN 

merit  or  codicil  shall  have  been  proved  and  recorded  as  afore- 
said, according  to  the  practice  in  Courts  of  Chancery  in  simi- 
lar cases;  but  if  no  such  person  shall  appear  within  the  time 
aforesaid,  the  probate  as  aforesaid,  shall  be  forever  binding 
and  conclusive  on  all  the  parties  concerned,  saving  to  infants, 
femmes  covert,  persons  non  compos  mentis,  or  absent  from 
the  State,  the  like  period  after  the  removal  of  their  respective 
disabilities.  And  in  all  such  trials  by  jury  as  aforesaid,  the 
certificate  of  the  oath  of  the  witnesses  at  the  time  of  the 
first  probate,  shall  be  admitted  as  evidence,  and  to  have  such 
weight  as  the  jury  shall  think  it  may  deserve."  [R.  S.,  537, 
Sec.  6.] 

On  the  probate  of  any  will  at  least  two  credible  attesting 
witnesses  are  required  to  be  sworn  and  examined ;  and  be- 
fore the  same  can  be  admitted  to  record,  such  witnesses  must 
have  declared  on  oath  or  affirmation,  that  they  were  present 
and  saw  the  testator  or  testatrix  sign  said  will,  testament  or 
codicil,  in  their  presence,  and  heard  him  or  her  acknowledge 
the  same  to  be  his  or  her  act  and  deed ;  and  they  believed 
the  testator  or  testatrix  to  be  of  sound  mind  and  memory,  at 
the  time  of  signing  or  acknowledging  the  same.  [Id.,  Sec.  2.] 
'•'  It  shall  be  the  duty  of  each  and  every  witness  to 
any  will,  testament  or  codicil  made  and  executed  in  this 
State  as  aforesaid,  to  be  and  appear  before  the  Court  of 
Probate,  on  the  regular  day  for  probate  of  such  will,  testa- 
ment or  codicil,  to  testify  of  and  concerning  the  execution 
and  validity  of  the  same;  and  the  said  Court  of  Probate 
shall  have  power  and  authority  to  attach  and  punish,  by  fine 
and  imprisonment,  or  either,  any  witness  who  shall,  without 
a  reasonable  excuse,  fail  to  appear  when  duly  summoned  for 
the  purpose  aforesaid  ;  provided  the  said  punishment  by  im- 
prisonment shall  in  no  case  exceed  the  space  of  twenty 
days ;  nor  shall  a  greater  fine  be  assessed  for  any  such  de- 
fault, than  the  sum  of  fifty  dollars."  [Id.,  Sec.  3.] 

"  When  any  will,  testament  or  codicil  shall  be  produced  to 


ILLINOIS. 


271 


the  Court  of  Probate,  for  probate  of  the  same,  and  any  wit- 
ness attesting  such  will,  testament  or  codicil,  shall  reside 
without  the  limits  of  this  State,  it  shall  be  lawful  for  the 
Probate  Justice  to  issue  a  dedimus  potestatem,  or  commis- 
sion, annexed  to  such  will  testament  or  codicil,  directed  to 
some  Judge,  Justice  of  the  Peace,  Mayor  or  other  chief  mag- 
istrate of  the  city,  town,  corporation  or  county  where  such 
witness' may  be  found,  authorizing  the  taking  and  certifying 
of  his  or  her  attestation  in  due  form  of  law.  And  if  the 
person  to  whom  any  such  commission  shall  be  directed,  shall 
certify,  in  the  manner  that  such  acts  are  usually  authentica- 
ted, that  the  witness  personally  appeared  before  him,  and 
made  oath  or  affirmation  that  the  testator  or  testatrix  signed 
and  published  the  writing  annexed  to  such  commission,  as 
his  or  her  last  will  and  testament ;  or  that  some  other  per- 
son signed  it  by  his  or  her  direction ;  that  he  or  she  was  of 
sound  mind  and  memory  ;  and  that  he  or  she  subscribed  his 
or  her  name  as  a  witness  thereto,  in  the  presence  of  the  tes- 
tator or  testatrix,  and  at  his  or  her  request;  such  oath  or  af- 
firmation shall  have  the  same  operation  and  the  will  shall  be 
admitted  to  probate  in  like  manner,  as  if  such  oath  or  affirm- 
ation had  been  made  in  the  Court  of  Probate  from  whence 
such  commission  issued."  [Id.,  Sec.  4.] 

"  In  all  cases,  wherein  a  Probate  Justice  of  the  Peace,  or 
such  other  person  as  may  be  authorized  by  law  to  grant  pro- 
bate of  wills  and  testaments,  may  and  shall  have  become  a 
witness  to  any  will  or  testament  which  is  required  by  law  to 
be  proved  before  him  as  such  Probate  Justice  of  the  Peace, 
or  person  authorized  to  grant  probate  as  aforesaid,  and  the 
testimony  of  such  witness  is  necessary  to  the  proof  of  the 
same,  then,  and  in  such  case,  it  shall  be  his  duty  to  go  before 
the  Circuit  Court  of  the  county  in  which  such  will  is  to  be 
admitted  to  record,  and  make  proof  of  the  execution  of  the 
same,  in  the  same  manner  that  probate  of  wills  is  required 
to  be  made  in  other  cases.  And  it  shall  be  the  duty  of  the 


272  STATUTE  OF  DESCENTS  IN 

Clerk  of  the  Circuit  Court  aforesaid,  forthwith  to  certify  such 
will,  proven  as  aforesaid,  to  the  Probate  Court  of  the  county  ; 
and  said  will  shall,  thereupon,  have  the  same  force  and  ef- 
fect that  it  would  have  had  if  it  had  been  proven  by  one 
credible  witness  before  the  Court  of  Probate ;  and  if  there 
are  other  witnesses  to  said  will,  the  Court  of  Probate  shall 
take  their  evidence  in  support  of  said  will,  as  in  other  ca- 
ses." [Id.,  Sec.  5.] 

"  After  any  original  will  shall  have  been  admitted  to  pro- 
bate, the  statute  requires  the  Probate  Justice  to  record  the 
same  in  books  to  be  provided  and  kept  for  that  purpose ;  and- 
any  authenticated  copy  thereof  certified  under  the  hand  and 
seal  of  said  Probate  Justice,  is  evidence  in  any  court  of  law 
or  equity.  [Id.,  540,  Sec.  16.] 

"Any  will,  testament  and  codicil,  or  authenticated  copies 
thereof,  proven  according  to  the  laws  of  any  of  the  United 
States,  or  the  territories  thereof,  or  of  any  country  out  of  the 
limits  of  the  United  States,  and  touching  or  concerning  es- 
tates within  this  State,  accompanied  with  a  certificate  of  the 
proper  officer  or  officers,  that  such  will,  testament,  codicil  or 
copy  thereof,  was  duly  executed  and  proved,  agreeably  to 
the  laws  and  usages  of  that  State  or  country  in  which  the 
same  was  executed,  shall  be  recorded  as  aforesaid,  and  shall 
be  good  and  available  in  law,  in  like  manner  as  wills  made 
and  executed  in  this  State.*  [Id.,  538,  Sec.  8.] 

XII.  THE  TITLE  TO  REAL  ESTATE  BY  DESCENT  IN  IL- 
LINOIS. 

By  the  Revised  Statutes  of  Illinois,  the  estates,  both  real  and 
personal,  of  resident  or  non-resident  proprietors  dying  intes- 
tate, or  whose  estates  or  any  part  thereof,  shall  be  deemed 

*At  least  two  subscribing  witnesses  are  necessary  to  the  validity  of  wills  in  Illi- 
nois, and  the  same  number  are  required  to  prove  it,  unless  their  death  or  absence  be 
such  as  to  admit  secondary  proof.  [Breese,  46.] 

A  will  attested  by  three  or  more  witnesses,  some  of  whom  is  or  are  incompetent* 
is  valid,  if  two  of  them  are  credible  and  competent.  [Idem.] 


ILLINOIS.  273 

and  taken  as  intestate  estate,  and  after  all  just  debts  and 
claims  against  such  estates  shall  be  paid  as  aforesaid,  shall 
descend  to  and  be  distributed  to  his^or  her  children  and  their 
descendants,  in  equal  parts ;  the  descendants  of  a  deceased 
child  or  grandchild  taking  the  share  of  their  deceased  parent, 
in  equal  parts  among  them :  and  when  there  shall  be  no 
children  of  the  intestate,  nor  descendants  of  such  children, 
and  no  widow,  then  to  the  parents,  brothers  and  sisters  of 
the  deceased  person  and  their  descendants,  in  equal  parts 
among  them ;  allowing  to  each  of  the  parents,  if  living,  a 
child's  part,  or  to  the  survivor  of  them,  if  one  be  dead,  a 
double  portion  ;  and  if  there  be  no  parent  living,  then  to  the 
brothers  and  sisters  of  the  intestate,  and  their  descendants. 
When  there  shall  be  a  widow  and  no  child  or  children,  or 
descendants  of  a  child  or  children  of  the  intestate,  then  the 
one-half  of  the  real  estate,  and  the  whole  of  the  personal  es- 
tate, shall  go  to  such  widow,  as  her  exclusive  estate  forever ; 
subject  to  her  absolute  disposition  and  control,  to  be  govern- 
ed in  all  respects  by  the  same  rules  and  regulations  as  are  or 
may  be  provided  in  cases  of  estates  of  femmes  sole :  if  there 
be  no  children  of  the  intestate,  or  descendants  of  such  chil- 
dren, and  no  parents,  brothers,  or  sisters,  or  descendants  of 
brothers  and  sisters,  and  no  widow,  then  such  estate  shall  de- 
scend in  equal  parts  to  the  next  of  kin  to  the  intestate,  in 
equal  degree,  computing  by  the  rules  of  the  civil  law ;  and 
there  shall  be  no  representation  among  collaterals,  except 
with  the  descendants  of  the  brothers  and  sisters  of  the  intes- 
tate ;  and  in  no  case  shall  there  be  a  distinction  between  the 
kindred  of  the  whole  and  the  half  blood,  saving  to  the  widow, 
in  all  cases  her  dower,  as  provided  by  law.  [R.  S.,  545, 
Sec.  46.] 

"  When  any  femme  covert  shall  die  intestate,  leaving  no 
child  or  children,  or  descendants  of  a  child  or  children,  then 
the  one-half  of  the  real  estate  of  the  decedent  sfcall  descend 


274  LEVY  AND  COLLECTION  OF  LAND  TAXES  IN 

and  go  to  her  husband,  as  his  exclusive  estate  forever."  [Id., 
546,  Sec.  47.] 

"  Upon  the  decease  ofViy  alien,  having  title  to,  or  interest 
in,  any  lands  or  tenements,  such  lands  and  tenements  shall 
pass  and  descend  in  the  same  manner  as  if  such  alien  were 
a  citizen  of  the  United  States  ;  and  it  shall  be  no  objection 
to  any  person  having  an  interest  in  such  estate,  that  they 
are  not  citizens  of  the  United  States ;  but  all  such  persons 
shall  have  the  same  rights  and  remedies,  and  in  all  things 
be  placed  on  the  same  footing  as  natural  born  citizens,  and 
actual  residents  of  the  United  States."  [Id.,  48,  Sec.  1.] 

It  is  further  provided,  that  if  any  person  shall  die,  seized 
of  any  real  estate,  without  having  devised  the  same,  and 
leaving  no  heirs  or  representatives  capable  of  inheriting  the 
same,  or  the  devisees  thereof  capable  of  holding  the  same, 
such  estate  shall  escheat  to  and  vest  in  the  State.  [Id.,  225, 
Sec.  1.] 

XIII.  THE  LEVY  AND  COLLECTION  OF  LAND  TAXES  IN 
ILLINOIS. 

All  real  estate  within  the  State  is  liable  to  taxation,  ex- 
cept such  as  belongs  to  the  State,  or  to  the  United  States ; 
lands  sold  by  the  United  States  within  the  preceding  five 
years ;  lands  belonging  to  township  school  funds ;  lands 
whereon  any  school  house,  court  house,  or  jail,  shall  have 
been  erected  ;  lands  not  exceeding  five  acres  whereon  any 
county  buildings  are  situated ;  not  exceeding  ten  acres  where- 
on any  church  shall  have  been  erected  ;  burial  grounds  not 
exceeding  ten  acres ;  and  grounds  on  which  any  building 
belonging  to  any  literary,  religious,  benevolent,  charitable, 
or  scientific  institution,  shall  be  situated,  not  exceeding  ten 
acres. 

The  statutes  invest  the  County  Commissioners'  Court  with 
the  power  to  levy  taxes  in  their  respective  counties,  for  coun- 


ILLINOIS.  275 

ty  purposes,  under  the  restrictions  that  they  shall  not,  unless 
specially  authorized  hy  law,  levy  a  tax  that  shall  exceed  four 
mills  on  each  dollar's  worth  of  property.  County  taxes  are 
required  to  be  levied  at  the  March  terms  of  such  courts,  and 
to  be  collected  with  the  State  revenue,  in  the  manner  herein- 
after indicated.  [R.  S.,  438,  Sec.  8.] 

On  or  before  the  first  day  of  February,  annually,  the  Au- 
ditor of  Public  Accounts  in  Illinois  is  required  to  prepare  and 
transmit  to  the  Clerks  of  the  Commissioners'  Courts  for  the 
several  counties,  a  list  of  lands  which  have  become  subject 
to  taxation  within  the  preceding  year,  from  which  such 
Clerks  are  enabled  to  prepare  the  Assessor's  book.  The 
Treasurer  of  each  county  is  ex-ofRcio  the  Assessor.  [Id., 
Sec.  12,  13.] 

It  is  made  the  duty  of  every  Clerk  of  the  County  Commis- 
sioners' Court,  on  or  before  the  first  Monday  of  March  in 
each  year,  to  cause  to  be  delivered  to  the  Assessor  of  his 
county,  in  a  well  bound  book,  a  transcript  containing  a  list 
and  description  of  all  taxable  lands  and  town  lots  lying  with- 
in his  county,  except  such  as  shall  have  been  sold  to  the 
State,  and  remain  unredeemed,  with  the  names  of  purchasers 
of  lands  from  the  United  States  and  from  this  State,  together 
with  the  names  of  the  present  owners,  in  a  separate  column, 
when  the  same  are  known ;  and  the  said  transcript,  when 
returned,  is  required  to  be  kept  for  the  use  of  future  Asses- 
sors. To  this,  the  lands  contained  in  the  Auditor's  list  are 
required  to  be  added. 

Such  Clerk  is  also  required  to  specify,  in  a  separate  and 
distinct  list,  arid  deliver  the  same  to  the  Assessor,  all  delin- 
quent lands  and  town  lots  lying  within  his  county,  which 
may  have  been  previous  to  that  time  forfeited  to  the  State 
for  taxes,  and  remaining  unredeemed  from  such  forfeiture. 
[Id.,  Sec.  11.] 

The  Treasurer,  in  the  capacity  of  Assessor,  upon  the  re- 
ceipt of  such  transcript  and  list,  is  required  to  prepare  a  list 


676 


LEVY  AND  COLLECTION  OF  LAND  TAXES  IN 


of  all  taxable  property  within  his  county,  and  to  proceed  to 
assess  the  value  thereof  by  going  to  the  place  of  residence  of 
each  owner  of  taxable  property  within  his  county.  And  if 
he  shall  deem  it  necessary,  he  may  require  every  owner  of 
taxable  property  "  to  give  in,  under  oath,  either  by  himself 
or  agent,  a  list  and  description  of  all  his  taxable  lands,  by 
townships,  ranges,  quarter  sections,  tracts,  lots,  or  parts  there- 
of, and  the  number  of  acres  in  each  tract,  with  the  improve- 
ments thereon,  all  town  lots,  with  the  improvements  thereon, 
all  pleasure  carriages,  whether  with  two  or  four  wheels,  all 
horses,  mares,  jacks,  jennies,  mules,  indentured  servants,  neat 
cattle,  ships  and  vessels,  stocks,  money  on  hand  and  at  in- 
terest, household  furniture,  and  every  other  description  of 
personal  property,  all  capital  employed  each  year  in  mer- 
chandising, adopting  as  a  criterion,  the  value  of  the  greatest 
amount  of  goods  on  hand  at  any  time  in  the  year,  and  he 
(the  Assessor)  shall,  in  the  presence  of  such  person,  enter  the 
same  in  his  book,  and  value  each  tract  or  lot  separately,  and 
each  species  of  personal  property  separately,  placing  the  de- 
scription and  value  in  figures,  opposite  the  name  of  the  per- 
son owning  or  listing  the  same,  provided  that  unimproved 
town  lots  may  be  listed  and  assessed  in  blocks."  [Id.,  439, 
Sec.  16.] 

The  minimum  value  of  all  lands  in  the  State  for  the  pur- 
pose of  taxation  is  three  dollars  per  acre. 

"  If  any  Assessor  shall  be  unable  to  find  the  owner  of  any 
lands  or  lots  contained  in  his  list,  he  shall  value  the  same 
according  to  the  best  information  he  can  procure,  and  enter 
the  same  on  his  list  in  the  name  of  the  patentee,  or  present 
owner,  if  known."  [Id.,  440,  Sec.  17.] 

"  If  any  person  shall  give  a  false  or  fraudulent  list,  or  re- 
fuse to  deliver  to  the  Assessor,  when  called  on  for  that 
purpose,  a  list  of  his  or  her  taxable  property,  as  required  by 
law,  the  said  Assessor,  as  a  penalty  therefor,  shall  assess  the 
property  of  such  person  at  double  its  value."  [Id.,  Sec.  18.] 


ILLINOIS.  277 

"  Lands  and  town  lots  owned  by  non-residents  of  the  coun- 
ty, when  once  correctly  listed  for  taxation  by  their  owners, 
shall  not  be  required  to  be  listed  again  by  them  till  a  subdi- 
vision or  change  of  ownership  takes  place."  fid.,  Sec.  19.] 

ic  If  any  real  or  personal  property  shall  be  omitted  in  the 
assessment  of  any  year  or  number  of  years,  the  same  when 
discovered  shall  be  assessed  by  the  Assessor  for  the  time  be- 
ing, and  placed  upon  the  assessment  list  with  the  arrearages 
of  tax  which  might  have  been  assessed  with  six  per  cent  in- 
terest thereon,  from  the  time  the  same  ought  to  have  been 
paid  :  the  Clerk  of  the  County  Commissioners'  Court  shall 
also  have  power  to  list  any  property  omitted  for  a  previous 
year  or  years,  and  add  the  same  to  the  Collector's  list,  and  re- 
port the  same  to  the  County  Commissioners'  Court  at  their 
next  term;  and  said  court  is  required  to  enter  the  same  of 
record,  and  charge  the  Collector  with  the  same,  and  the  Clerk 
to  certify  said  charges  to  the  Auditor  at  the  time  of  certify- 
ing the  allowances  made  to  Collectors."  [Id.,  Sec.  20.] 

"  Every  Assessor  shall  complete  the  assessment  of  prop- 
erty in  his  county,  on  or  before  the  first  Monday  of  August 
in  each  year,  and  return  to  the  County  Commissioners'  Court 
the  abstract  of  lands  furnished  him  by  said  Clerk,  also  the 
list  of  delinquent  real  estate  forfeited  to  the  State  and  still 
owned  by  the  same,  with  the  valuation  thereof,  and  his  list 
and  description  of  all  taxable  property  within  the  county, 
with  the  names  of  owners  when  known,  and  valuation."  Id., 
440,  Sec.  21.] 

"  The  Clerks  shall  make  out  copies  of  the  said  lists,  and 
on  or  before  the  second  Monday  of  September  in  each  year, 
transmit  a  copy  of  the  list  of  forfeited  lands  and  lots,  with 
the  valuation  thereof  to  the  Auditor,  and  deliver  a  copy  of 
the  other  to  the  Collector  of  his  county  for  the  purpose  of 
collection  ;  and  the  Commissioners'  Court  shall  be  required 
to  make  all  necessary  corrections  in  the  same."  [Id.,  Sec.  22.] 

"  The  Assessor  shall  add  up  his  own  figures  in  the  columns 


LEVY  AND  COLLECTION  OF  LAND  TAXES  IN 

expressing  the  total  valuation  of  real  estate,  the  total  valua- 
tion of  personal  property,  and  the  total  amount  of  State  tax, 
county  tax,  and  road  tax."  [Id.,  Sec.  23.] 

"  Every  Clerk  shall  immediately  after  the  September  term 
of  the  County  Commissioners'  Court,  transmit  by  mail  to  the 
Auditor,  a  statement  of  the  aggregate  amount  of  State  tax 
assessed  in  his  county,  and  the  Auditor  shall  charge  the  same 
to  the  Collector."  [Id.,  Sec.  24.] 

"The  Clerk  of  the  County  Commissioners'  Court  shall,  at 
the  same  time  as  aforesaid,  transmit  to  the  Auditor  a  state- 
ment showing  the  aggregate  amount  of  tax  on  real  estate  in 
his  county,  for  State  and  county  purposes  respectively ;  also 
a  statement  of  the  amount  of  taxes  on  personal  property, 
for  State  and  county  purposes  respectively,  together  with  a 
statement  of  the  rate  of  taxation  levied  for  county  purposes 
in  this  county."  [Id.,  441,  Sec.  25. 

The  statutes  make  ample  provision  for  correcting  errors  in 
the  assessment  rolls,  where  any  person  shall  feel  himself  ag- 
grived  by  the  assessment  of  his  property.  The  County 
Commissioners'  Court,  at  the  September  term  thereof,  next 
succeeding  the  assessment,  has  the  power,  on  the  application 
of  any  person  whose  property  has  been  assessed  during  the 
current  year,  to  review  the  record  and  list  certified  by  the 
Clerk ;  and  if  it  shall  be  made  to  appear  by  credible  proof, 
that  the  valuation  of  the  Assessor  was  too  high,  such  court 
in  its  discretion  may  order  a  reduction.  But  the  party  ag- 
grieved must  apply  at  the  September  term  next  succeeding 
the  assessment  complained  of,  or  he  will  be  concluded  by  the 
assessment  as  made  by  the  Assessor. 

The  Sheriff  of  each  county  in  Illinois,  is  ex-officio  Collec 
tor  of  taxes  levied  therein.  After  having  given  a  bond  to 
the  people  of  the  State,  for  the  faithful  performance  of  his 
duty  as  Collector  of  taxes,  it  is  his  duty  to  receive  from  the 
County  Commissioner's  Clerk,  the  assessed  list,  and  to  pro- 
ceed to  collect  the  taxes  charged  in  said  list,  by  calling  upon 


ILLINOIS.  279 

each  person  residing  in  his  county,  at  his  or  her  usual  place 
of  residence,  and  requiring  payment  thereof. 

It  is  the  duty  of  such  Clerk  to  deliver  the  assessment  list 
to  the  Sheriff,  on  the  second  Monday  of  September  annually, 
or  as  soon  thereafter  as  such  Sheriff  shall  have  given  his 
bond  as  above  provided.  [Id.,  442,  Sec.  31.] 

Upon  the  receipt  of  the  list  by  the  Sheriff,  a  lien  upon  the 
forfeit  assessed,  attaches  for  the  tax ;  and  no  sale  or  transfer 
of  the  same  after  that  time,  can  defeat  or  affect  such  lien. 
The  property  may  be  seized  by  the  Collector  and  by  him 
sold  to  discharge  the  taxes  and  the  costs  and  expenses  of 
collection.  [Id.,  Sec.  33.] 

The  statute  further  provides  that  in  case  any  person  shall 
refuse  or  neglect  to  pay  his  or  her  taxes  when  demanded,  or 
within  ten  days  thereafter,  it  shall  be  the  duty  of  the  Col- 
lector to  levy  the  same,  together  with  the  co^ts  and  charges 
that  may  accrue  by  distress  and  sale  of  the  personal  proper- 
ty of  such  person  as  ought  to  pay  the  same  wherever  the 
same  may  be  found  in  the  county.  No  real  estate  can  be 
legally  sold  for  taxes,  whilst  personal  property  can  be  found 
by  the  Collector.  But  no  sale  is  valid  unless,  by  advertise- 
ments posted  in  at  least  three  public  places  in  the  precinct 
where  such  sale  shall  take  place,  at  least  ten  days  previous 
to  the  day  of  sale,  the  Collector  shall  have  notified  the  pub- 
lic of  the  time  and  place  thereof,  and  the  property  to  be  sold. 
[Id.,  Sec.  35,  36.] 

The  sale  is  required  to  be  at  public  auction,  and  if  practi- 
cable, no  more  property  than  is  sufficient  to  pay  the  tax, 
costs  and  charges  due,  should  be  sold.  "  Land  shall,  if  con- 
venient, be  sold  in  parcels,  and  if  sold  for  more  than  the 
amount  of  the  tax,  costs  and  charges,  the  surplus  shall  be 
returned  to  the  owner  of  such  property.7'  [Id.,  Sec.  37.] 

State  taxes  are  required  to  be  collected  in  gold  and  silver 
coin,  and  Auditor's  warrants  ;  and  county  taxes,  in  gold  and 
silver  coin,  Auditor's  warrants,  or  jury  certificates. 


LEVY  AND  COLLECTION  OF  LAND  TAXES  IN 

On  or  before  the  first  Monday  of  March  next  ensuing  the 
receipt  of  the  tax  list  by  the  Sheriffs  of  the  several  counties, 
they  are  required  to  pay  all  taxes  by  them  collected  for  State 
purposes,  into  the  State  treasury.  As  to  county  taxes,  every 
Collector  is  required  to  pay  all  sums  collected  into  the  coun- 
ty treasury  at  the  end  of  every  month,  except  county  orders 
and  jury  certificates ;  and  on  the  first  Monday  of  June  annu- 
ally, it  is  his  duty  to  make  a  final  settlement,  and  to  account 
for  and  pay  over  the  whole  amount  of  revenue  due  the 
county,  deducting  therefrom  the  amount  of  taxes  he  may 
have  been  unable  to  collect,  by  reason  of  the  insolvency, 
removal,  or  non-residence  of  persons  charged  with  taxes. 
[Id.,  Sec.  43,  44.J  . 

But  when  any  person  owning  lands  in  any  county  shall 
fail  to  pay  taxes  assessed  thereon,  and  the  Collectors  shall  be 
unable  to  find  any  personal  property  of  such  person  in  his 
county,  whereon  to  levy,  of  a  value  sufficient  to  pay  the  tax- 
es and  costs,  it  is  made  the  duty  of  the  Collector  to  make 
report  thereof  to  the  Circuit  Court  of  his  county,  at  the  first 
term  thereof  in  each  year.  [Id.,  444,  Sec.  46.] 

At  least  six  weeks  notice  of  such  report  and  application, 
however,  is  necessary,  to  be  published  in  some  newspaper 
printed  in  the  said  county,  if  any  such  there  be,  or  if  there 
be  none,  then  in  the  nearest  newspaper  in  the  State  ;  which 
notice  is  required  to  contain  the  names  of  the  owner  or  own- 
ers, if  known,  the  amount  of  the  delinquent  tax,  interest,  and 
costs  due  thereon,  and  the  year  or  years  for  which  the  same 
are  due ;  and  to  mention  his  intended  application  to  the 
court  for  judgment  against  said  lands,  and  for  an  order  to 
sell  the  same,  for  the  satisfaction  of  such  taxes,  interest,  and 
costs  ;  and  that  on  the  fourth  Tuesday  next  succeeding  the 
day  fixed  by  law  for  the  commencement  of  the  said  term  of 
the  said  Circuit  Court,  all  the  lands  against  which  judgment 
shall  be  pronounced,  and  for  the  sale  of  which,  such  order 
is  required  to  be  made,  will  be  exposed  to  public  sale  at  the 


ILLINOIS.  281 

court  house  of  the  said  county,  for  the  amount  of  said  tax- 
es, interest,  and  costs  due  thereon.  [Id.,  Sec.  47.] 

Such  Circuit  Court,  at  the  term  aforesaid,  is  required  to 
call  the  docket  of  such  cases,  and  if  upon  such  calling,  any 
defense  be  offered  by  any  of  the  owners  of  lands  delinquent 
and  reported,  or  by  any  person  having  a  claim  or  inter- 
est therein,  it  shall  hear  and  determine  the  same  in  a  sum- 
mary way,  without  pleadings  ;  and  if  no  defense  be  made,  to 
pronounce  judgment  against  the  said  lands  and  direct  the 
Clerk  to  issue  an  order  for  their  sale.  [Id.,  445,  Sec.  58.] 

On  the  day  specified  in  the  Collector's  notice,  it  is  the  duty 
of  that  officer  to  attend  at  the  court  house  in  his  county,  and 
then  and  there,  at  the  hour  of  ten  o'clock  in  the  forenoon,  to 
proceed  to  offer  for  sale,  separately,  each  tract  of  land  in  the 
said  list,  on  which  the  taxes  and  costs  have  not  then  been 
paid  ;  and  the  person  offering  to  pay  the  taxes  and  costs,  for 
the  least  quantity  of  land,  becomes  the  purchaser  of  such 
quantity,  to  be  taken  from  the  east  side  of  the  tract.  [Id., 
Sec.  51. 

"  Any  person  or  persons  owning  or  claiming  lands  adver- 
tised for  sale  as  aforesaid,  may  pay  the  taxes,  interest  and 
costs  due  thereon,  to  the  Collector  of  the  county  in  which 
the  same  are  situated,  at  any  time  before  the  sale  thereof." 
[Id.,  446,  Sec.  61.] 

In  respect  to  lands  designated  and  known  as  Illinois  and 
Michigan  Canal  Lands,  sold  upon  a  credit,  there  are  a  num- 
ber of  special  provisions.  Where  purchasers  fail  to  pay  the 
taxes  assessed  on  them,  it  is  the  duty  of  the  Collector  to  re- 
port such  failure  to  the  acting  Commissioner  of  the  said 
canal,  and  thenceforth  all  right,  interest  and  title  of  the 
said  purchaser  ceases  ;  and  said  lands  are  not  permitted 
in  any  case  to  be  sold  for  the  non-payment  of  taxes,  and  any 
sale,  if  made,  is  declared  to  be  absolutely  void.  [Id.,  450, 
Sec.  94.] 

"That  if  the  taxes  upon  the  said  property  assessed  as 


282      LEVY  AND  COLLECTION  OF  LAND  TAXES  IN 

aforesaid,  shall  not  be  paid  according  to  law,  and  it  shall  be 
necessary  to  sell  the  same  for  taxes,  such  sales  shall  extend 
to  the  interest  paid,  and  all  improvements  thereon  ;  the  fee 
simple  title  to  said  property  still  remaining  in  the  State.  [Id., 
590,  Sec.  2.] 

Every  tract  of  land  offered  for  sale  by  any  Collector  as 
hereinbefore  provided,  and  not  sold  for  want  of  bidders,  is 
considered  as  forfeit  to  the  people,  and  the  claims  thereto 
of  the  former  owner  or  owners  utterly  transferred  to  and 
vested  in  the  State  of  Illinois ;  yet  lands  thus  forfeited  may 
be  redeemed  at  any  time  within  two  years,  by  paying  to  the 
Clerk  of  the  County  Commissioners'  Court  of  the  county  in 
which  said  lands  may  be  situated,  double  the  amount  for 
which  such  real  estate  was  forfeited,  and  all  taxes  accruing 
thereon  to  the  time  of  redemption,  with  interest  on  each  year's 
tax,  at  the  rate  of  six  per  cent,  from  the  first  Monday  of  May 
in  each  year  to  the  time  of  redemption.  Infants,  femmes 
covert  and  lunatics  may  redeem  at  any  time  within  one  year 
after  the  removal  of  such  disability  or  disabilities.  [Id.,  449, 
Sec.  78.] 

Concerning  forfeited  lands,  as  contradistinguished  from 
such  as  shall  be  sold  by  the  Collector  for  taxes  as  herein 
above  mentioned,  it  is  provided  that  every  two  years  from 
the  first  Monday  of  September,  eighteen  hundred  and  forty- 
five,  the  Clerks  of  the  County  Commissioners'  Courts  of  the 
several  counties  respectively  shall  cause  them  to  be  sold  at 
public  auction.  When  any  sale  of  any  lot  thus  forfeited 
shall  be  effected,  it  is  the  duty  of  such  Clerk  to  deliver  to  the 
purchaser  a  certificate  of  purchase,  which,  on  being  present- 
ed to  the  Auditor,  entitles  the  legal  holder  thereof  to  a  deed 
"  conveying  all  the  right,  title,  interest  and  claim  of  the  State 
to  the  tracts  or  lots  described  in  said  certificate."  [Id.,  450, 
Sec.  87.] 


ILLINOIS.  283 

XIV.  LAND  TAX  FORFEITURES  AND  REDEMPTIONS  IN 
ILLINOIS. 

The  method  provided  for  the  collection  of  taxes  on  lands, 
was  indicated  in  the  preceding  article.  Upon  a  sale  by  the 
Sheriff,  acting  as  Collector,  the  title  of  the  original  owner  is  over- 
shadowed by  the  paramount  claim  and  lien  of  the  people  of 
the  State.  But  "real  estate  sold  for  delinquent  taxes,  may 
be  redeemed  at  any  time  before  the  expiration  of  two  years 
from  the  date  of  sale,  by  the  payment  in  specie,  to  the  Clerk 
of  the  County  Commissioners'  Court  of  the  proper  county, 
of  double  the  amount  for  which  the  same  was  sold,  and  all 
taxes  accruing  after  such  sale,  unless  such  subsequent  taxes 
have  been  paid  to  the  Collector,  as  may  be  shown  by  the 
Collector's  receipt,  by  the  person  redeeming,  with  six  per- 
cent interest  thereon  from  the  first  day  of  May  in  each  year 
up  to  the  time  of  payment ;  provided,  that  if  the  real  estate 
of  any  infant,  femme  covert,  or  lunatic,  be  sold  for  taxes,  the 
same  may  be  redeemed  at  any  time  within  one  year  after 
such  disability  shall  be  removed,  upon  the  terms  specified  in 
this  section."  [R.  S.,  447,  Sec.  69.] 

"  At  any  time  after  the  expiration  of  two  years  from  the 
sale  of  any  real  estate  for  taxes,  if  the  same  shall  not  have 
been  redeemed,  the  Collector,  on  request,  and  on  the  produc- 
tion of  the  certificate  of  purchase,  shall  execute  and  deliver 
to  the  purchaser,  his  heirs  or  assigns,  a  deed  of  conveyance 
for  the  real  estate  described  in  such  certificate/'  [Id.,  Sec.  71.] 

"  The  deed  so  made  by  the  Collector,  shall  be  acknow- 
ledged and  recorded  in  the  same  manner  as  other  conveyances 
of  real  estate,  and  shall  vest  in  the  grantee,  his  heirs  or  as- 
signs, the  title  of  the  property  therein  described."  [Id.,  Sec. 
72.] 

Where  purchasers  of  land  sold  for  taxes,  shall  neglect  to 
pay  the  taxes  thereon,  and  such  land  shall  be  again  sold  for 
taxes  before  the  expiration  of  two  years  from  the  date  of  his 


284 


LIMITATIONS  IN 


or  her  purchase,  such  purchaser  is  not  entitled  to  a  deed  for 
the  land  until  the  expiration  of  two  years  from  the  date  of 
the  second  sale ;  during  which  time  the  land  is  subject  to 
redemption  upon  the  usual  terms,  except  that  the  person  re- 
deeming is  only  required  to  pay  for  the  use  of  such  purcha- 
ser, the  amount  paid  for  the  land,  and  double  the  amount 
paid  by  the  second  purchaser.*  [Id.,  451,  Sec.  97.] 

XV.  LIMITATION  OP  ACTIONS  FOR  THE  RECOVERY  OF 
HEAL  ESTATE  IN  ILLINOIS. 

The  statutes  provide  that  no  person  having  any  right  of 
entry  into  any  lands,  tenements  or  hereditaments,  shall  make 
an  entry  therein,  but  within  twenty  years  next  after  such 
right  shall  have  accrued ;  and  that  such  person  shall  be 
barred  from  any  entry  afterwards.  [R.  S.,  349,  Sec.  6.] 

That  every  real,  possessory,  ancestral  or  mixed  action,  or 
writ  of  right  brought  for  the  recovery  of  any  lands,  tene- 
ments or  hereditaments,  shall  be  brought  within  twenty  years 
next  after  the  right  or  title  thereto,  or  cause  of  such  action 
accrued,  and  not  after.  [Id.,  Sec.  7.] 

That  every  real,  possessory,  ancestral  or  mixed  action,  or 
writ  of  right  brought  for  the  recovery  of  any  lands,  tene- 
ments or  hereditaments,  of  which  any  person  may  be  pos- 
sessed by  actual  residence  thereon,  having  a  connected  title 
in  law  or  equity,  deducible  of  record,  from  this  State  or  the 
United  States,  or  from  any  public  officer  or  other  person  au- 
thorized by  the  laws  of  this  State,  to  sell  such  land  for  the 
non-payment  of  taxes,  or  from  any  Sheriff,  Marshal,  or  other 
person  authorized  to  sell  such  land  on  execution,  or  under 
any  order,  judgment,  or  decree,  of  any  Court  of  Record,  shall 
be  brought  within  seven  years  next  after  possession  being 

*  In  a  sale  for  taxes  under  special  authority,  every  substantial  requisite  of  the 
statutes  of  the  State  must  be  complied  with  either  to  divest  an  individual  of  his 
property,  or  to  invest  a  purchaser  with  a  valid  title.  [4  Peters,  349.] 

A  poll  tax  is  inhibited  by  the  Constitution  of  Illinois,  and  cannot,  therefore,  be 
legally  imposed  or  collected.  [Breesc,  183,] 


ILLINOIS.  285 

taken  as  aforesaid ;  but  when  the  possession  shall  acquire 
such  title  after  taking  such  possession,  the  limitation  shall 
begin  to  run  from  the  time  of  acquiring  title.  [Id.,  Sec.  8.] 

But  possession,  to  bar  such  rights,  actions,  and  suits,  must 
have  been  continued  in  manner  aforesaid,  for  the  term  of 
seven  years  next  preceding  the  time  of  asserting  the  right  of 
entry,  or  the  commencement  of  any  suit  or  action.  Id., 
Sec.  9.] 

It  is  further  provided,  that  no  person  who  has  or  may  have 
any  right  of  entry  into  any  lands,  tenements,  or  heredita- 
ments, of  which  any  person  may  be  possessed,  by  actual 
residence  thereon,  having  a  connected  title  in  law  or  equity, 
deducible  of  record  from  this  State,  or  the  United  States,  or 
from  any  public  officer,  or  other  person  authorized  by  the 
laws  of  this  State  to  sell  such  lands  for  the  non-payment  of 
taxes,  or  from  any  Sheriff,  Marshal,  or  other  person  author- 
ized to  sell  such  land  on  execution,  or  under  any  order,  judg- 
ment, or  decree,  of  any  Court  of  Record,  shall  make  any  en- 
try therein,  except  within  seven  years  from  the  time  of  such 
possession  being  taken  ;  but  when  the  possessor  shall  acquire 
such  title  after  the  time  of  taking  such  possession,  the  limi- 
tation shall  begin  to  run  from  the  time  of  acquiring  title. 
[Id.  350,  Sec.  11.] 

In  all  the  foregoing  cases  in  which  the  person  or  persons 
who  shall  have  any  right  of  entry,  title,  or  cause  of  action, 
shall  be,  at  the  time  of  such  right  of  entiy,  title,  or  cause  of  ac- 
tion, under  the  age  of  twenty-one  years,  insane,  or  femme  co- 
vert, such  person  or  persons  may  make  such  entry,  or  institute 
such  action,  so  that  the  same  may  be  done  within  such  time 
as  is  within  the  time  limited  after  his  or  her  becoming  of  full 
age,  sane,  or  femme  sole.*  [Id.,  Sec.  14.] 

*  The  limitation  upon  actions  of  trespass,  trover,  replevin,  for  rent,  on  parol  de- 
mise, account,  upon  the  case  (except  slander  and  actions  for  malicious  prosecutions- 
and  such  actions  as  concern  the  trade  of  merchandise  between  merchant  and  mer- 
chant, their  factors,  or  agents)  is  five  years ;  upon  assault,  battery,  wounding, 


286  INTEREST  OF  MONEY  IN 

XVI.    REAL  ESTATE  EXEMPTIONS  IN  ILLINOIS. 

No  real  estate  of  any  debtor  in  Illinois,  except  not  exceed- 
ing one-eighth  of  an  acre  laid  off  for  a  burial  place,  is  ex- 
empt from  levy  and  sale  upon  executions.  But  the  land  on 
which  a  judgment  debtor  resides  (the  homestead)  is  protected 
from  any  levy  or  sale  until  all  his  personal  property  liable  to 
execution,  and  all  his  other  real  estate  shall  have  been  ex- 
hausted. [R.  S.,  301,  Sec.  9.] 

And  when  any  property,  real  or  personal,  shall  be  taken  in 
execution,  if  such  property  be  susceptible  of  division,  it 
is  required  to  be  sold  in  such  quantities  as  may  be  necessa- 
ry to  satisfy  such  execution  and  costs.*  [Id.,  302,  Sec.  10] 

imprisonment,  and  malicious  prosecutions,  two  years  ;  upon  actions  of  slander,  one 
year ;  upon  actions  of  debt  or  covenant  upon  any  lease  under  seal,  any  single  or  pe- 
nal bill,  promissory  note,  or  writing  obligatory,  sixteen  years.  [R.  S.,  318,  Sec. 
1,  2,  3,  4.] 

*The  necessary  wearing  apparel  of  every  person  shall  be  exempt  from  execution, 
writ  of  attachment  and  distress ;  and  the  following  property  when  owned  by  any 
person  being  the  head  of  a  family  and  residing  with  the  same,  shall  be  exempt  from 
levy  and  sale  on  any  execution,  writ  of  attachment,  or  distress  for  rent ;  and  such 
articles  of  property  shall  continue  so  exempt  while  the  family  of  such  person,  or 
any  of  them,  are  removing  from  one  place  of  residence  to  another  in  this  State, 
viz : 

First,  Necessary  beds,  bedsteads,  and  bedding ;  the  necessary  utensils  for  cook- 
ing ;  necessary  household  furniture,  not  exceeding  in  value  fifteen  dollars ;  one  pair 
of  cards,  two  spinning  wheels,  one  weaving  loom  and  appendage ;  one  stove  and 
the  necessary  pipe  therefor  being  in  use,  or  put  up  for  ready  use,  in  any  house  occu- 
pied by  such  family. 

Second,  One  milch  cow  and  calf,  two  sheep  for  each  member  of  the  family,  and 
the  fleeces,  taken  from  the  same,  or  the  fleeces  of  two  sheep,  for  each  member  of  a 
family  which  may  have  been  purchased  by  any  debtor  not  owning  sheep,  and  the 
yarn  and  cloth  that  may  be  manufactured  from  the  same,  and  sixty  dollars  worth  of 
property  suited  to  his  or  her  condition  or  occupation  in  life,  to  be  selected  by  the 
debtor. 

Third,  Necessary  provisions  and  fuel  for  the  use  of  the  family  for  three  months? 
and  necessary  food  for  the  stock  hereinbefore  exempted  from  sale,  or  that  may  be 
held  under  the  provisions  of  this  chapter. 


ILLINOIS.  287 

XVII.    THE  INTEREST  OF   MONEY  IN  ILLINOIS. 

The  rate  of  interest  upon  the  loan  or  forbearance  of  any 
money,  goods,  or  things  in  action,  is  fixed  by  the  General 
Assembly  of  Illinois  at  six  per  centum  per  annum,  or  six 
dollars  upon  one  hundred  dollars  for  one  year,  and  after  that 
rate  for  a  greater  or  less  sum,  or  for  a  longer  or  a  shorter 
time. 

Creditors  are  allowed  to  receive  at  the  rate  of  six  per  cen- 
tum per  annum  for  all  moneys  after  they  become  due,  on  any 
bond,  bill,  promissory  note  or  other  instrument  of  writing ; 
on  any  judgment  recovered  before  any  court  or  magistrate 
authorized  to  enter  up  the  same  within  this  State,  from  the 
day  of  signing  judgment  until  the  effects  be  sold,  or  satisfac- 
tion of  such  judgment  be  made ;  likewise,  on  money  lent, 
on  money  due  on  the  settlement  of  accounts  from  the  day  of 
liquidating  accounts  between  the  parties,  and  ascertaining  the 
balance  ;  on  money  received  to  the  use  of  another,  and  re- 
tained without  the  owner's  knowledge;  and  on  money  with- 
held by  an  unreasonable  and  vexatious  delay  of  payment. 
[R.  S.,  295,  Sec.  1,  2.] 

XVI II.     PENALTY  AND  FORFEITURE  OF  USURY  IN  ILLINOIS. 

The  statute  provides  that  "  no  person  or  corporation  shall 
directly  or  indirectly  accept  or  receive  in  money,  goods,  dis- 
counts, or  things  in  action,  or  in  any  other  way,  any  greater 
sum  or  greater  value,  for  the  loan,  forbearance  or  discount 
of  any  moneys,  goods  or  things  in  action,  than  as  above  de- 
scribed." [R.  S.,  295,  Sec.  36.] 

"  Whenever  in  any  action  brought  on  any  contract  or  as- 
surance, for  the  payment  of  money,  or  any  other  thing,  it 
shall  appear  to  the  court  before  which  such  action  shall  be 
tried,  by  the  pleading  on  the  case,  and  on  application  of  the 
defendant,  that  a  greater  rate  of  interest  shall  have  been  direct- 
ly or  indirectly  received,  discounted  or  taken,  than  is  allowed 


288       PENALTY  AND  FORFEITURE  OF  USURY  IN  ILLINOIS. 

by  this  chapter,  the  defendant  shall  recover  his  full  costs,  and 
the  plaintiff  shall  forfeit  threefold  the  amount  of  the  whole 
interest  reserved,  discounted  or  taken,  and  shall  have  judg- 
ment and  execution  for  the  balance  only,  which  may  remain 
due  upon  said  contract  or  assurance,  after  deducting  three- 
fold the  amount  of  said  interest,  one-third  part  of  which 
shall  be  paid  to  the  defendant,  and  the  remaining  two-thirds 
shall  be  paid  into  the  county  treasury  of  the  county  in  which 
such  suit  shall  have  been  instituted."  [Id.,  Sec.  4.] 

"If  any  person  or  corporation  shall,  directly  or  indirectly, 
contract  to  accept  or  receive  in  money,  goods,  discounts  or 
things  in  action,  any  greater  sum  or  greater  value,  for  the 
loan,  forbearance,  or  discount  of  any  money,  goods  or  things 
in  action,  than  is  prescribed  by  this  chapter,  he,  she,  or  they 
shall  forfeit  and  pay  to  the  person  sueing  for  the  same,  three- 
fold the  amount  of  the  whole  interest  so  contracted,  to  be  re- 
served, discounted  or  taken  :  provided  said  suit  be  not  com- 
menced by  either  of  the  contracting  parties ;  and  if  so,  then 
the  amount  so  recovered  shall  be  paid  into  the  county  treas- 
ury of  the  county  where  such  suit  shall  have  been  insti- 
tuted. [Id.,  Sec.  5.] 

Every  person,  and  his  personal  representatives,  who  for 
any  such  loan,  discount  or  forbearance,  shall  pay  or  deliver 
any  greater  sum  or  value  than  is  above  allowed  to  be  received, 
may  recover  in  an  action  against  the  person  who  shall 
have  taken  or  received  the  same,  and  his  personal  represen- 
tatives, threefold  the  amount  of  the  money  so  paid,  or  value 
so  paid,  or  value  delivered  above  the  rate  aforesaid,  either  by 
an  action  of  debt,  in  any  court  having  any  jurisdiction 
thereof,  or  by  bill  in  chancery  in  the  Circuit  Court,  which 
court  is  hereby  authorized  to  try  the  same :  provided  said 
action  shall  be  brought,  or  bill  filed  within  two  years  from 
the  time  when  the  right  thereto  accrued.*  [Id..  Sec.  6.] 

*  Debtors  may  call  their  creditors  as  witnesses,  on  any  trial  where  the  question 
of  usury  is  in  issue,  to  prove  such  usxiry. 


MICHIGAN.  289 


CHAPTER  V, 


THE  STATE  OF  MICHIGAN. 

Ssurce  of  Title  to  Lands  in  the  State.  Native  Proprietors  thereof.  Erection  of 
Michigan  Territory  from  that  of  Indiana.  Enlargement  of  the  same  upon  the 
Admission  of  Illinois  aa  a  State.  Act  of  Congress  authorizing  the  People  of  the 
Territory  to  form  a  Constitution,  and  for  the  Admission  of  Michigan  as  a  State; 
and  another  to  Establish  the  Northern  Boundary  Line  of  the  Stateof  Ohio,  and  to 
Provide  for  the  Admission  of  Michigan  into  the  Union  upon  the  conditions  there- 
in expressed.  Her  Constitution,  and  Land  Titles  generally.  The  Execution, 
Attestation,  Proof,  Acknowledgment,  Authentication,  and  Recording  of  Convey- 
ances. The  Execution,  Attestation,  Probate,  and  Recording  of  Wills  of  Real 
Estate.  Regulations  concerning  Titles  by  Descent.  The  Levy  and  Collection 
of  Land  Taxes.  Land  Tax  Forfeitures,  Sales,  and  Redemptions.  Limita- 
tions. Exemptions.  Interest  of  Money,  and  Usury. 

I.  SOURCE  OF  TITLE  TO  LANDS  IN  THE  STATE  OF  MICH- 
IGAN— NATIVE  PROPRIETORS  THEREOF,  &C. 

THIS  State  derived  her  name  from  the  Lake  that  washes 
her  western  border,  called  by  the  natives,  Mitch-igye-gan. 

Although  her  advancement  in  agriculture  and  commerce 
would  indicate  a  maturer  age,  Michigan  is  but  an  infant 
member  of  the  republican  family,  her  years  being  chronicled 
by  ten  annual  suns.  She  is,  however,  not  without  the  charms 
of  antiquity.  In  a  retrospect  nearly  obscure  in  oblivion,  when 
the  untutored  Indian  alone  broke  the  reigning  silence  of  her 
woodlands,  charms  clustered  about  her  unique  and  mys- 
terious inhabitants. 

The  territory  which  now  forms  the  domain  of  the  State, 
first  obtained  notice  in  1620— the  year  of  the  landing  of  the 
13 


290        .  SOURCE  OF  TITLE  TO  LANDS  IN 

Pilgrims  at  Plymouth  ;  and  was  then  in  the  occupancy  of 
the  Algonquins  and  Huron s,  as  native  proprietors.  These 
races  were  distinctive  in  their  immediate  paternity,  yet  it  is 
presumed  that  both  were  of  Tartar  origin.  [Ante  28.] 
They  were  closely  allied  to  each  other,  as  against  the  Iro- 
quois.  Having  been  for  a  long  period  in  the  undisputed 
possession  of  the  country,  they  had  come  to  believe  that  the 
rivers  and  forests,  the  fish  and  the  wild  game,  were  their 
own ;  and  that  the  Great  Spirit  intended  them  for  their  occu- 
pation, sustenance  and  comfort.  It  is  true,  that  they  were 
rude  and  uncultivated,  and  utterly  unused  to  the  ways  of 
civilization  ;  yet  they  dwelt  together  in  towns  and  villages, 
and  cultivated  apples  and  patches  of  corn.  They  were  also 
ingenuous,  hospitable,  and  humane. 

Whilst  thus  in  possession  of  the  country,  the  French  gov- 
ernment, under  whose  auspices  and  patronage  Canada  had 
been  theretofore  colonized,  adopted  measures  for  the  explo- 
ration of  the  wilderness  world  about  the  lakes,  with  a  view 
to  the  fur  trade,  and  of  making  title  to  the  soil  thereof, 
as  against  the  natives.  Discovery  and  possession  of  any 
country  under  the  authority  of  an  existing  government,  is 
held  to  make  a  title  thereto,  as  against  them,  subject  only 
to  their  right  of  occupancy.  [8  Wheaton,  543.] 

Claiming  the  country  about  the  lakes,  the  ecclesiastical 
establishment  at  Quebec  adopted  measures  for  the  explora- 
tion thereof  by  missionaries,  among  the  first  of  whom 
was  Charles  Raymbault,  who  visited  the  tribes  of  Nipising, 
in  1641.  He  was  succeeded  by  Bussani,  Claude,  Mesnard 
and  others,  who  not  only  explored  the  country,  but  carried 
the  cross  and  the  lilies  of  the  Bourbons  to  the  remotest 
boundaries  of  the  Canadian  territory. 

For  the  documentary  history  of  the  surrender  of  this  region 
to  the  English,  the  relinquishment  of  the  same  by  the  latter, 
the  cessions  of  the  States,  the  treaties  extinguishing  the  In- 
dian right  of  occupancy,  and  the  ordinance  of  1787,  for  the 


MICHIGAN  291 

government  of  the  territory  of  the  United  States  northwest 
of  the  river  Ohio,  which  included  Michigan,  see  ante,  127 
to  157,  inclusive. 

Michigan  was  taken  chiefly  from  Indiana  territory,  previous 
to  the  erection  of  the  territory  of  Illinois,  but  her  bounda- 
ries were  subsequently  enlarged,  upon  the  admission  of  Illi- 
nois into  the  Union. 

II.  ERECTION  OF  MICHIGAN  TERRITORY  BY  AN  ACT  OF 
CONGRESS  ENTITLED  "  AN  ACT  TO  DIVIDE  THE  INDI- 
ANA TERRITORY  INTO  TWO  SEPARATE  GOVERNMENTS." 
APPROVED  JANUARY  11,  1805. 

"Section  I.  Be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives of  the  United  States  of  America  in  Congress 
assembled,  That  from  and  after  the  thirteenth  day  of  June 
next,  all  that  part  of  the  Indiana  territory,  which  lies  north 
of  a  line  drawn  east  from  a  southerly  bend  or  extreme  of 
Lake  Michigan,  until  it  shall  intersect  Lake  Erie,  and  east  of 
a  line  drawn  from  the  said  southerly  bend  or  extreme  of  Lake 
Michigan,  until  it  shall  intersect  Lake  Erie,  and  east  of  a 
line  drawn  from  the  said  southerly  bend  through  the  middle 
of  said  lake  to  its  northern  extremity,  and  thence  due  north 
to  the  northern  boundary  of  the  United  States,  shall,  for  the 
purpose  of  temporary  government,  constitute  a  separate  ter- 
ritory, and  be  called  Michigan. 

"Sec.  II.  And  be  it  further  enacted,  That  there  shall  be 
established  within  the  said  territory  a  government  in  all  re- 
spects similar  to  that  provided  by  the  ordinance  of  Congress 
passed  on  the  thirteenth  day  of  July,  one  thousand  seven 
hundred  and  eighty-seven,  for  the  government  of  the  territo- 
ry of  the  United  States,  northwest  of  the  river  Ohio;  and  by 
an  act  passed  on  the  seventh  day  of  August,  one  thou- 
sand seven  hundred  and  eighty-nine,  entitled,  "An  act  to 
provide  for  the  territory  northwest  of  the  river  Ohio;"  and 


292  TERRITORY  OF 

the  inhabitants  thereof  shall  be  entitled  to.  and  enjoy  all  and 
singular  the  rights,  privileges,  and  advantages  granted  and 
secured  to  the  people  of  the  territory  of  the  United  States, 
northwest  of  the  river  Ohio,  by  the  said  ordinance. 

"Sec.  III.  And  be  it  further  enacted,  That  the  officers  for  the 
said  territory,  who  by  virtue  of  this  act  shall  be  appointed  by 
the  President  of  the  United  States  by  and  with  the  advice 
and  consent  of  the  Senate,  shall  respectively  exercise  the 
same  powers,  perform  the  same  duties,  and  receive  for  their 
services  the  same  compensations,  as  by  the  ordinance  afore- 
said, and  the  laws  of  the  United  States,  have  been  provided, 
and  established  for  similar  offices  in  the  Indiana  territory  ; 
and  the  duties  and  emoluments  of  Superintendent  of  Indian 
Affairs,  shall  be  united  with  those  of  Governor. 

"  Sec.  IV.  And  be  it  further  enacted,  That  nothing  in  this 
act  contained,  shall  be  construed  so  as,  in  any  manner,  to 
affect  the  government  now  in  force  in  the  Indiana  territory, 
further  than  to  prohibit  the  exercise  thereof  within  the  said 
territory  of  Michigan,  from  and  after  the  aforesaid  thirtieth 
day  of  June  next. 

"  Sec.  V.  And  be  it  further  enacted,  That  all  suits,  process 
and  proceedings,  which,  on  the  thirtieth  day  of  June  next, 
shall  be  pending  in  the  court  of  any  county,  which  shall  be 
included  within  the  said  territory  of  Michigan  ;  and  also  all 
suits,  process  and  proceedings,  which  on  the  said  thirtieth 
day  of  June  next,  shall  be  pending  in  the  General  Court  of 
the  Indiana  territory,  in  consequence  of  any  writ  of  removal, 
or  order  for  trial  at  bar,  and  which  had  been  removed  from 
any  of  the  counties  included  within  the  limits  of  the  territory 
of  Michigan  aforesaid,  shall,  in  all  things  concerning  the 
same,  be  proceeded  on,  and  judgments  and  decrees  rendered 
thereon,  in  the  same  manner  as  if  the  said  Indiana  territory 
had  remained  undivided. 

''Sec.  VI.  And  be  it  further  enacted,  That  Detroit  shall  be 


MICHIGAN.  293 

the  seat  of  government  of  the  said  territory,  until  Congress 
shall  otherwise  direct."*  (U.  S.  Statutes,  by  Peters,  Vol.  2, 
309.] 

III.  AN  ACT  TO  ESTABLISH  THE  NORTHERN  BOUNDARY  LINE 
OF  THE  STATE  OF  OHIO,  AND  TO  PROVIDE  FOR  THE  ADMIS- 
SION OF  THE  STATE  OF  MICHIGAN  INTO  THE  UNION  UP- 
ON THE  CONDITIONS  THEREIN  EXPRESSED.  APPROVED 
JUNE  15,  1836. 

"  Sec.  I.  Be  it  enacted  by  the  Senate  and  House  of  Repre- 
sentatives of  the  United  States  of  America  in  Congress  as- 
sembled, That  the  northern  boundary  line  of  the  State  of 
Ohio,  shall  be  established  at,  and  shall  be  a  direct  line  drawn 
from  the  southern  extremity  of  Lake  Michigan,  to  the  most 
northerly  cape  of  the  Maumce,  (Miami)  bay,  after  that  line, 
so  drawn,  shall  intersect  the  eastern  boundary  line  of  the 
State  of  Indiana ;  and  from  the  said  north  cape  of  the  said 
bay,  northeast  to  the  boundary  line  between  the  United 
States  and  the  province  of  Upper  Canada,  in  Lake  Erie; 
and  thence,  with  the  said  last  mentioned  line,  to  its  intersec- 
tion with  the  western  line  of  the  State  of  Pennsylvania. 

"  Sec.  II.  And  be  it  further  enacted,  That  the  constitution 
and  State  Government,  which  the  people  of  Michigan  have 
formed  for  themselves  be,  and  the  same  is  hereby,  accepted, 
ratified  and  confirmed  ;  and  that  the  said  State  of  Michigan 
shall  be,  and  is  hereby,  declared  to  be  one  of  the  United 
States  of  America,  and  is  hereby  admitted  into  the  Union 
upon  an  equal  footing  with  the  original  States,  in  all  respects 

*In  1334  a  dispute  arose  between  the  people  of  the  State  of  Ohio  and  those  of 
the  territory  of  Michigan  concerning  a  tract  of  valuable  land,  situated  at  the  pro- 
posed terminus  of  the  \V abash  and  Erie  Canal.  So  much  excitement  prevailed, 
that  each  contending  party  sent  a  military  force  to  the  disputed  frontier,  and  the 
people  of  Michigan  called  a  convention,  adopted  a  constitution,  and  petitioned  Con- 
gress to  be  admitted  into  the  Union  with  the  territory  in  dispute.  Congress,  how- 
ever, decided  in  favor  of  the  claims  of  Ohio,  and  assigned  to  Michigan  in  lieu 
thereof,  twenty-five  thousand  square  miles  of  barren  mountainous  country  on  the 
shores  of  Lake  Superior, 


TERRITORY  OF 

whatsoever:  provided  always,  and  this  admission  is  upon 
the  express  condition,  that  the  said  State  shall  consist  of  and 
have  jurisdiction  over  all  the  territory  included  within  the 
following  boundaries,  and  over  none  other,  to  wit :  beginning 
at  the  point  where  the  above  described  northern  boundary 
of  the  State  of  Ohio  intersects  the  eastern  boundary  of  the 
State  of  Indiana,  and  running  thence  with  the  said  bounda- 
ry line  of  Ohio,  as  described  in  the  first  section  of  this  act, 
until  it  intersects  the  boundary  line  between  the  United 
States  and  Canada,  in  Lake  Erie  ;  thence  with  the  said  boun- 
dary line  between  the  United  States  and  Canada  through  the 
Detroit  river,  Lake  Huron,  and  Lake  Superior,  to  a  point 
where  the  said  line  last  touches  Lake  Superior  ;  thence  in  a 
direct  line  through  Lake  Superior,  to  the  mouth  of  the  Mon- 
treal river  ;  thence  through  the  middle  of  the  main  channel 
of  the  said  river  Montreal,  to  the  middle  of  the  Lake  of  the 
Desert ;  thence  in  a  direct  line  to  the  nearest  head  water  of 
the  Menomonie  river ;  thence  through  the  middle  of  that 
fork  of  the  said  river  first  touched  by  the  said  line,  to  the 
main  channel  of  the  said  Menomonie  river;  thence  down 
the  centre  of  the  main  channel  of  the  same,  to  the  centre  of 
the  mpst  usual  ship  channel  of  the  Green  Bay  of  Lake 
Michigan;  thence  through  the  centre  of  the  most  usual  ship 
channel  of  the  said  bay  to  the  middle  of  Lake  Michigan  ; 
thence  through  the  middle  of  Lake  Michigan,  to  the  north- 
ern boundary  of  the  State  of  Indiana,  as  that  line  was  es- 
tablished by  the  act  of  Congress  of  the  nineteenth  of  April, 
eighteen  hundred  and  sixteen ;  thence  due  east,  with  the 
north  boundary  line  of  the  said  State  of  Indiana,  to  the  north- 
east corner  thereof;  and  thence  south,  with  the  east  boun- 
dary line  of  Indiana,  to  the  place  of  beginning. 

"  Sec.  III.  And  be  it  further  enacted,  That,  as  a  compli- 
ance with  the  fundamental  condition  of  admission  contained 
in  the  last  preceding  section  of  this  act,  the  boundaries  of  the 
said  State  of  Michigan,  as  in  that  section  described,  declared, 


MICHIGAN. 


295 


and  established,  shall  receive  the  assent  of  a  convention  of 
delegates  elected  by  the  people  of  the  State,  for  the  sole  pur- 
pose of  giving  the  assent  herein  required ;  and  as  soon  as  the 
assent  herein  required  shall  be  given,  the  President  of  the 
United  States  shall  announce  the  same  by  proclamation  ;  and 
thereupon,  and  without  any  further  proceeding  on  the  part 
of  Congress,  the  admission  of  the  said  State  into  the  Union, 
as  one  of  the  United  States  of  America,  on  an  equal  footing 
with  the  original  States  in  all  respects  whatever,  shall  be 
considered  as  complete,  and  the  Senators  and  Representatives 
who  have  been  elected  by  the  said  State,  as  its  representa- 
tives in  the  Congress  of  the  United  States,  shall  be  entitled  to 
take  their  seat  in  the  Senate  and  House  of  Representatives 
respectively,  without  further  delay. 

Sec.  IV.  And  be  it  further  enacted,  That  nothing  in  this 
act  contained,  or  in  the  admission  of  the  said  State  into  the 
Union,  as  one  of  the  United  States  of  America,  upon  an  equal 
footing  with  the  original  States  in  all  respects  whatever, 
shall  be  so  construed  or  understood  as  to  confer  upon  the 
people.  Legislature,  or  other  authorities  of  the  said  State  of 
Michigan,  any  authority  or  right  to  interfere  with  the  sale  by 
the  United  States,  and  under  their  authority,  of  the  vacant 
and  unsold  lands  within  the  limits  of  the  said  State,  but  that 
the  subject  of  the  public  lands,  and  the  interest  which  may 
be  given  to  the  said  State  therein,  shall  be  regulated  by  fu- 
ture action  between  Congress,  on  the  part  of  the  United 
States,  and  the  said  State,  or  the  authorities  thereof.  Arid 
the  said  State  of  Michigan  shall  in  no  case  and  under  no 
pretence  whatsoever,  impose  any  tax,  assessment  or  imposi- 
tion of  any  description  upon  any  of  the  lands  of  the  United 
States  within  its  limits."*  [U.  S.  Stat.  by  Peters,  5  :  49.] 

*The  ordinance  of  1787  declared  that  not  less  than  three  nor  more  than  five 
States  should  be  formed  from  the  territory  northwest  of  the  river  Ohio.  Ohio,  In- 
diana and  Illinois  had  been  admitted ;  so  that  Michigan  waa  the  fourth  State  that 
claimed  admission ;  leaving  Wisconsin  to  apply  when  her  population  should  war- 
rant the  application. 


296  TERRITORY  OF 


IV.  AN  ACT  SUPPLEMENTARY  TO  THE  FOREGOING  ACT. 
APPROVED  JUNE  23,  1836. 

''Be  it  enacted  by  the  Senate  and  House  of  Representa- 
tives of  the  United  States  of  America  in  Congress  assem- 
bled, That  in  lieu  of  the  propositions  submitted  to  the  Con- 
gress of  the  United  States  by  an  ordinance  passed  by  the 
Convention  of  delegates  at  Detroit,  assembled  for  the  purpose 
of  making  a  constitution  for  the  State  of  Michigan,  which 
are  hereby  rejected ;  and  that  the  following  propositions  be, 
and  the  same  are  hereby  offered  to -the  State  Legislature  of 
Michigan,  for  their  acceptance  or  rejection,  which  if  accepted, 
under  the  authority  conferred  on  the  said  Legislature  by  the 
Convention  which  framed  the  constitution  of  the  said  State, 
shall  be  obligatory  upon  the  United  States. 

First.  That  section  numbered  sixteen  in  every  township 
of  the  public  lands,  and  where  such  section  has  been  sold  or 
otherwise  disposed  of,  other  lands  equivalent  thereto,  and  as 
contiguous  as  may  be,  shall  be  granted  to  the  State  for  the 
use  of  schools. 

Second.  That  the  seventy-two  sections  of  land  set  apart 
and  reserved  for  the  use  and  support  of  a  university  by  an  act 
of  Congress  approved  on  the  twentieth  day  of  May,  eighteen 
hundred  and  twenty-six,  entitled,  "  An  act  concerning  a  sem- 
inary of  learning  in  the  Territory  of  Michigan,"  are  hereby 
granted  to  the  State,  to  be  appropriated  solely  to  the  use  and 
support  of  such  university,  in  such  manner  as  the  Legisla- 
ture may  prescribe  ;  and  provided  also,  that  nothing  herein 
contained  shall  be  so  construed  as  to  impair  or  affect  in  any 
way  the  rights  of  any  person  or  persons  claiming  any  of 
said  seventy-two  sections  of  lands,  under  contract  or  grant 
from  said  university. 

Third.  That  five  entire  sections  of  land,  be  selected  and 
located  under  the  direction  of  the  Legislature,  in  legal  divi- 
sions of  not  less  than  one  quarter  section,  from  any  of  the 


MICHIGAN.  297 

unappropriated  lands  belonging  to  the  United  States  within 
the  said  State,  are  hereby  granted  to  the  State  for  the  purpose 
of  completing  the  public  buildings  of  the  said  State,  or  for 
the  erection  of  public  buildings  at -the  seat  of  government  of 
the  said  State,  as  the  Legislature  may  determine  and  direct. 

Fourth.  That  all  salt  springs  within  the  State,  not  exceed- 
ing twelve  in  number,  with  six  sections  of  land  adjoining  or 
as  contiguous  as  may  be  to  each,  shall  be  granted  to  the  said 
State  for  its  use,  the  same  to  be  selected  by  the  Legislature 
thereof,  on  or  before  the  first  of  January,  eighteen  hun- 
dred and  forty  ;  and  the -same,  when  so  selected,  to  be  used 
on  such  terms,  conditions,  and  regulations,  as  the  Legislature 
of  the  said  State  shall  direct :  provided,  that  no  salt  spring, 
the  right  whereof  is  now  vested  in  any  individual  or  indi- 
viduals, or  which  may  hereafter  be  conferred  or  adjudged  to 
any  individual  or  individuals  shall,  by  this  section,  be  grant- 
ed to  said  State :  and  provided  also,  that  the  General  Assem- 
bly shall  never  sell  or  lease  the  same,  at  any  one  time,  for  a 
longer  period  than  ten  years,  without  the  consent  of  Con- 
gress. 

Fifth.  That  five  per  cent  of  the  net  proceeds  of  the  sales 
of  all  public  lands  lying  within  the  said  State,  which  have  been 
or  shall  be  sold  by  Congress,  from  and  after  the  first  day  of 
July,  eighteen  hundred  and  thirty-six,  after  deducting  all  the 
expenses  incident  to  the  same,  shall  be  appropriated  for  ma- 
king public  roads  and  canals  within  the  said  State,  as  the 
Legislature  may  direct :  provided,  that  the  five  foregoing  prop- 
ositions herein  offered,  are  on  the  condition  that  the  Legisla- 
ture of  the  said  State,  by  virtue  of  the  powers  conferred  npon 
it  by  the  Convention  which  framed  the  constitution  of  the 
said  State,  shall  provide,  by  an  ordinance  irrevocable  with- 
out the  consent  of  the  United  States,  that  the  said  State  shall 
never  interfere  with  the  primary  disposal  of  the  soil  within 
the  same  by  the  United  States,  nor  with  any  regulations  Con- 
gress may  find  necessary  for  securing  the  title  in  such  soil  to 


298  LAND  TITLES  IN 

the  bona  fide  purchasers  thereof:  and  that  no  tax  shall  be 
imposed  on  lands  the  property  of  the  United  States ;  and 
that  in  no  case  shall  non-resident  proprietors  be  taxed  higher 
than  residents ;  and  that  the  bounty  lands  granted,  or  here- 
after to  be  granted,  for  military  services  during  the  late  war, 
shall,  whilst  they  continue  to  be  held  by  the  patentees  or  their 
heirs,  remain  exempt  from  any  tax  laid  by  order  or  under 
the  authority  of  the  State,  whether  for  State,  county,  town- 
ship, or  other  purpose,  for  the  term  of  three  years  from  and 
after  the  date  of  the  patentees  respectively.*  [U.  S.  Statutes 
by  Peters,  59.] 

V.  THE    CONSTITUTION    OF    THE    STATE  OF  MICHIGAN. 

The  organic  law  of  Michigan  was  adopted  in  a  Conven- 
tion, begun  and  held  at  the  city  of  Detroit,  on  the  eleventh 
day  of  May,  eighteen  hundred  and  thirty-five.  As  has  been 
intimated,  Michigan  adopted  her  Constitution  in  advance  of 
the  act  of  Congress  giving  permission,  claiming  the  right  of 
asserting  a  self-government,  under  the  ordinance  of  1787. 

It  protects  real  estate  from  unwarrantable  seizure,  and 
makes  provision  for  escheats,  yet  it  leaves  the  regulation  of 
estates  and  tenures  to  the  Legislature.  [See  Appendix.] 

VI.  LAND  TITLES    GENERALLY    IN    THE  STATE  OF  MICH- 
IGAN. 

•        .          .  . 

It  has  been  seen,  that  as  the  State  of  Michigan  was  erect- 
ed from  the  territory  of  the  United  States  northwest  of  the 
river  Ohio,  the  title  to  her  lands  was  derived  from  the  Gen- 
eral .Government.  And  as  she  came  into  the  Union  upon 
the  condition  that  her  laws  should  be  republican,  her  Legis- 
latures have  complied  with  the  terms,  by  regulating  estates 
in  land  after  the  example  of  New- York. 

*By  an  act  approved  January  26,  1837,  Michigan  was  admitted  into  the  Union, 
a  Convention  called  for  that  purpose,  having  assented  to  the  boundaries  assigned 
her  by  Congress.  She  was  also  declared  to  be  entitled  to  a  share  of  the  surplus 
revenue  of  the  United  States  which  had  been  ordered  to  be  distributed,  pending 
the  controversy  with  Ohio  concerning  the  boundary. 


MICHIGAN. 


299 


Estates  of  inheritance,  estates  for  life,  estates  for  years,  and 
estates  at  will,  or  sufferance,  are  recognized  by  statutes,  which 
are  nearly  literal  transcripts  of  those  cited,  ante  79. 

All  estates  tail  are  abolished  ;  and  every  estate  that  would 
have  been  adjudged  a  fee  tail,  under  the  territorial  laws  exist- 
ing prior  to  the  second  day  of  March,  eighteen  hundred  and 
twenty-one,  is.  under  the  revised  statutes,  a  fee  simple.  [R. 
S.  Mich.,  258,  Sec.  3.] 

Life  estates  are  defined  to  be  those  where  the  use  of  lands 
is  given  by  deed  or  will  to  one,  and  the  remainder  over  to 
the  heir.  [Id.,  Sec.  5.] 

All  estates  created  by  parol,  have  the  effect  of  estates  at 
will  only,  and  are  determinable  by  notice.  [Id.,  Sec.  6] 

Estate?  for  years  exist  where  the  right  is  limited  to  a  term, 
and  so  long  as  fifty  years  or  more  remain  nnexpired,  the  in- 
terest is  regarded  as  real  estate.  [Id.,  Sec.  7.] 

The  original  and  ultimate  property  in  all  real  estate  is  deem- 
ed to  be  possessed  by  the  people  ;  and  where  the  title  has 
been  vested,  and  the  incumbent  of  the  title  dies  without  heirs 
to  inherit  the  same,  the  property  escheats.  [Id.,  268,  Sec.  1.] 

Estates  vest  without  restrictions  as  to  alienism.  In  this 
respect,  Michigan  has  adopted  a  policy,  wise  in  itself,  and 
well  calculated  to  encourage  a  speedy  settlement  of  the  State. 
The  statute  provides  that  "any  alien  may  acquire  and  hold 
lands,  or  any  right  thereto,  or  interest  therein,  by  purchase, 
devise,  or  descent,  and  he  may  convey,  mortgage,  or  devise 
the  same  ;  and  if  he  shall  die  intestate,  the  same  shall  de- 
scend to  his  heirs  ;  and  in  all  cases,  such  lands  shall  be  held, 
conveyed,  mortgaged,  or  devised,  or  shall  descend  in  like 
manner  and  with  like  effect,  as  if  such  alien  were  a  native 
citizen  of  this  State,  or  of  the  United  States."  [Id.,  266, 
Sec.  27.] 

"The  title  of  any  person  to  any  lands  heretofore  conveyed, 
shall  not  be  questioned,  nor  in  any  manner  affected,  by  reason  of 


EXECUTION  OF  DEEDS  AND  MORTGAGES  IN 

the  alienage  of  any  person  from  or  through  whom  such  title 
may  have  been  derived."  [Id.,  Sec.  27.] 

The  same  liberality  is  extended  to  alien  widows.  Her 
alienage  is  no  bar  to  her  right  of  dower  in  and  to  all  the 
lands  of  which  her  husband  was  seized  during  coverture,  not 
relinquished  by  her.  unless  barred  by  jointure  settled  before 
marriage. 

Dower,  at  common  law,  by  non-resident,  as  well  as  resi- 
dent widows,  is  fully  guarantied  by  the  statute ;  and  the 
power  to  lease,  as  well  as  to  convey,  is  unrestricted. 

By  a  statute  passed  April  1,  1840,  all  persons,  of  lawful 
age,  residing  in  Michigan,  are  empowered  to  convey  real 
estate  ;  and  all  not  residing  in,  but  owning  lands  in  the  State, 
are  authorized  to  convey  according  to  the  laws  of  the  State 
in  which  such  person  or  persons  reside.  The  exception  of 
idiots  and  persons  of  unsound  mind,  contained  in  the  New- 
York  statutes,  does  not  occur  in  this  connection,  yet  it  is  to 
be  presumed  that  the  statute  is  to  be  taken  with  that  quali- 
fication, as  by  common  law  capacity  is  requisite  to  the  valid- 
ity of  any  act  concerning  lands.  The  transmission  of  estates 
by  devises  and  inheritance,  is  treated  of  under1  the  appro- 
priate heads. 

VII.  EXECUTION  OF  DEEDS  AND  MORTGAGES  OF  LANDS 
IN  MICHIGAN. 

The  statutes  provide  that  all  conveyances  of  lands,  or  of 
any  estate  or  interest  therein,  shall  be  by  deed.  [R.  S.,  257, 
Sec.  1.] 

In  a  former  chapter,  this  species  of  instrument  was  defined 
to  be,  such  an  orderly  arrangement  of  written  or  printed 
words  as  clearly  evince  the  purpose  of  the  grantor  in  respect 
to  the  realty  in  question.  The  people  of  the  new  States  are 
particularly  averse  to  complicated  forms  of  doing  business  ; 
and  in  their  desire  to  expunge  from  their  statute  books  every 
vestige  of  fiction,  they  have  dispensed  with  many  require* 


MICHIGAN.  301 

ments,  which  in  the  old  are  deemed  safeguards  of  the  title 
to  real  estate. 

In  Michigan,  it  is  expressly  provided  that  no  act  or  cere- 
mony whatever,  shall  be  required  to  pass  real  estate  other 
than  the  execution,  witnessing,  acknowledging,  and  record- 
ing, of  the  instrument  which  purports  to  transfer  the  title. 
Signing  and  sealing  constitute  the  valid  execution,  which, 
together  with  the  witnessing,  will  be  considered  in  order. 

//  must  be  signed.  This  requirement  pre-supposes  an 
instrument  susceptible  of  being  signed,  written  or  printed,  or 
partly  written  and  partly  printed  on  paper,  parchment,  or 
some  other  substance  equally  capable  of  uniting  within  itself, 
preservation  and  convenience.  It  has  been  judicially  held, 
that  a  transfer  of  land  written  upon  white  birch  bark,  was 
not  a  deed  within  the  meaning  of  the  law,  and  it  is  presumed 
that  a  writing  upon  stone,  board,  linen,  or  leather,  would  not 
be  recognized  as  a  valid  deed. 

It  7iiust  be  legibly  written.  A  chirography,  unsusceptible 
of  being  deciphered,  conveys  no  information  of  its  contents, 
and  is  void  for  uncertainty.  In  the  language  of  Chief  Jus- 
tice Hagaman,  "a  deed  to  be  valid,  must  be  capable  of  an 
intelligent  record."  It  must  be  so  free  from  ambiguity  that 
the  purpose  of  the  grantor  may  be  apprehended  from  its 
reading.  This  is  important  to  the  grantee,  as  he  cannot  ac- 
quire any  rights  under  it  by  implication,  unsupported  by  its 
provisions.  The  revised  statutes  require  the  signing  to  be 
by  "  the  person  having  the  right  to  convey,  or  by  his  attor- 
ney ;"  but  in  the  act  amendatory  of  the  revised  statutes, 
passed  April  1,  1840,  the  words,  "or  by  his  attorney,"  are 
not  retained.  As  the  latter  enactment  contains  nothing  in 
contravention  of  that  provision,  and  does  not  repeal  the  stat- 
ute which  contains  it,  it  is  presumed  that  a  deed  may  be 
signed,  either  by  the  grantor,  or  by  his  attorney  duly  author- 
ized. 


302  EXECUTION  OF  DEEDS  AND  MORTGAGES  IN 

The  signing  should  be  by  writing  the  name  of  the  grantor 
in  the  usual  manner ;  but  if  he  cannot  write,  he  may  depute 
another  to  do  it,  as  his  amanuensis,  or  special  agent,  or  he 
may  make  his  mark  thereto,  in  such  form  as  he  is  accus- 
tomed to  do,  for  a  signature.  Where  an  attorney  signs  a 
deed,  he  must  have  had  authority  in  writing  therefor,  duly 
executed,  witnessed,  and  acknowledged,  in  the  manner  in 
which  the  deed  itself  is  required  to  be  executed,  witnessed, 
and  acknowledged. 

It  must  be  sealed.  In  Michigan,  adhesive  and  impressive 
substances  are  not  indispensable  to  the  validity  of  a  seal.  By 
an  act  passed  in  1840,  it  is  provided  "  that  a  scroll,  or  de- 
vise, used  as  a  seal  on  any  deed  or  other  instrument,  shall 
have  the  same  force  and  effect  as  a  seal  would  have,  attached 
thereto,  or  impressed  thereon,  except  such  official  seals  as 
may  be  provided  for  by  law." 

It  must  be  ivitnessed.  Two  witnesses,  who  shall  subscribe 
their  names  thereto  as  such,  are  required  to  a  deed.  [Sess. 
Laws  1840.]  Formerly,  no  deed  could  be  acknowledged  to 
which  there  was  not  at  least  one  subscribing  witness  ;  but 
for  the  prevention  of  fraud,  two  are  now  requisite  to  its  valid- 
ity, in  Michigan.  As  the  acknowledgment  or  proof  of  the 
due  execution  is  a  necessary  step  in  the  process  of  alienation 
of  real  estate,  it  follows  that  all  pre-requisites  to  such  acknow- 
ledgment or  proof,  must  be  observed  in  conveyancing.  Two 
witnesses  are  therefore  indispensable  to  a  valid  conveyance ; 
and  they  should  be  persons  capable  in  law  of  being  witness- 
es of  the  fact,  of  the  signing  and  sealing  by  the  grantor,  in  a 
court  having  jurisdiction  to  try  the  question.  In  selecting 
witnesses  to  a  conveyance,  therefore,  no  person  who  has  been 
convicted  of  a  felony  within  the  State,  and  not  restored  to 
his  former  rights,  should  be  called,  for  such  are  incapable,  in 
law,  of  proving  the  fact.  So,  also,  are  those  who  are  render- 
ed incompetent  from  any  other  cause.  Infancy,  while  it  does 
not  necessarily  incapacitate  a  witness,  may  be  so  extreme  as 


MICHIGAN.  303 

to  impeach  the  understanding,  and  in  that  way  render  an 
infant  witness  incompetent.  If,  however,  an  infant  be  so  far 
advanced  as  to  be  capable  of  testifying  under  an  oath,  which 
he  or  she  understands,  and  for  a  violation  of  which  he  or  she 
apprehends  the  penalty,  and  who  would  be  received  by  a 
court  as  a  witness  in  a  civil  cause,  he  or  she  may  be  a  sub- 
scribing witness  to  a  deed. 

This  topic  relates  nominally  to  deeds,  but  as  a  mortgage  is 
only  a  defeasible  deed,  both  are  denominated  conveyances, 
and  are  governed  by  the  same  rules  in  respect  to  their  exe- 
cution. Releases  of  dower  in  real  estate,  are  required  to  be 
executed  in  the  same  manner.  In  Michigan,  the  latter  are 
termed  deeds,  in  the  statute,  and  if  the  right  become  vest- 
ed by  reason  of  the  death  of  the  husband,  the  widow,  under 
prohibitions  and  regulations,  conveys  as  if :  he  were  vested 
with  the  fee  of  the  land.  If,  however,  her  right  be  only  con- 
tingent as  in  the  life  time  of  her  husband,  she  must,  in  addi- 
tion to  the  signing,  sealing,  and  witnessing,  above  mentioned, 
acknowledge  on  a  separate  examination,  separate  and  apart 
from  her  husband,  that  she  executed  the  deed  or  release, 
"  without  fear  or  compulsion  from  any  one ;-'  a  certiiicate 
of  which  fact,  by  the  acknowledging  officer,  must  be  en- 
dorsed upon  the  deed. 

Powers  of  Attorney,  which  authorize  another  to  execute  a 
deed  or  mortgage,  although  not  required  in  terms,  it  is  pre- 
sumed should  be  executed  with  all  the  formalities  required 
in  the  execution  of  a  deed.  So,  also,  any  instrument  creating 
or  declaratory  of  any  trust  concerning  real  estate,  as  "no 
trust  concerning  lands,  excepting  such  as  may  arise  or  result 
by  implication  of  law,  shall  be  created  or  declared,  unless  by 
an  instrument  in  writing,  signed  by  the  party  creating  or 
declaring  the  same,  or  by  his  attorney."  [Id.,  261,  Sec. 
27.] 

To  prevail  as  against  a  subsequent  purchaser  or  incum- 
brancer,  such  trust  must  be  duly  witnessed,  sealed,  acknow- 


304     EXECUTION  OF  DEEDS  AND  MORTGAGES  IN 

ledged  and  recorded  ;  because  the  three  former  are  indispen- 
sable to  the  latter,  and  the  latter  is  requisite  to  afford  that 
notice,  which  will  protect  the  instrument. 

In  respect  to  leases  for  more  than  seven  years,  it  is  provi- 
ded, that  unless  they  are  executed,  acknowledged,  and  re- 
corded as  a  deed,  they  shall  be  ineffectual,  except  as  against 
the  grantor,  his  heirs,  devisees,  and  persons,  having  actual 
notice.  The  bearing  of  this  provision  will  be,  therefore,  ap- 
prehended by  land  owners  and  lessees,  inasmuch  as  all 
leases  not  so  executed  may  be  defeated  by  a  sale  to  a  third 
person,  without  notice.  It  may  be  further  remarked  in  this 
connection,  that  all  leases  in  parol,  create  only  a  tenancy  at 
will,  and  may  be  terminated  at  the  option  of  the  landlord,  if 
the  term  of  the  parol  agreement  be  for  more  than  one  year. 
Parol  leases  for  a  longer  term  than  one  year,  are  absolutely 
void,  by  the  statute  of  frauds,  and  confer  no  right  upon  the 
tenant.  Leases  for  more  than  one  and  less  than  seven  years, 
must  be  in  writing,  but  need  not  be  sealed,  acknowledged, 
nor  recorded.  Durable,  and  other  leases,  for  a  time  beyond 
the  limitation  above  mentioned,  it  will  be  seen,  are  controlled 
by  the  rules  which  govern  in  respect  to  absolute  conveyan- 
ces. 

Mortgage  defeasances  not  contained  within  the  body  of 
any  conveyance,  also  come  within  this  regulation.  For  it  is 
provided,  that  "  when  a  deed  imports  to  contain  an  absolute 
conveyance  of  any  estate  in  lands,  but  is  made,  or  intended 
to  be  made,  defeasible,  by  force  of  a  deed  of  defeasance,  or 
bond,  or  other  instrument  for  that  purpose,  the  original  con- 
veyance shall  not  be  thereby  defeated  or  affected,  as  against 
any  person  other  than  the  .maker  of  the  defeasance,  or  his 
heirs,  or  devisees,  or  persons  having  actual  notice  thereof, 
unless  the  instrument  of  defeasance  shall  have  been  duly 
executed  and  recorded  in  the  proper  office."  [Id.,  281,  Sec.  30.] 

The  same  method  should  be  pursued  in  the  execution  of 
mortgage  discharges ;  nevertheless,  mortgages  may  be  dis- 


MICHIGAN.  305 

charged  by  an  entry  on  the  margin  of  the  record  thereof,  in 
the  registry  of  deeds,  signed  by  the  mortgagee,  or  his  execu- 
tor, administrator,  or  assignee,  acknowledging  the  satisfac- 
tion of  the  mortgage  ;  and  such  entry,  by  statute,  will  have 
the  same  effect  as  a  deed  of  release  or  satisfaction. 

The  foregoing  provisions  concerning  conveyances  of  real 
estate,  are  guarded  by  others  equally  important  to  every  land 
owner. 

"  Every  conveyance  of  any  estate  or  interest  in  lands,  or 
the  rents  and  profits  of  lands,  and  every  charge  upon  lands, 
or  upon  the  rents  and  profits  thereof,  made  or  created  with 
the  intent  to  defraud  prior  or  subsequent  purchasers  for  a 
valuable  consideration,  of  the  same  lands,  rents,  or  profits 
as  against  subsequent  purchasers,  shall  be  void."  [Fletch- 
er's Revision,  1838,  328,  Sec.  1.] 

"  No  such  conveyance  or  charge  shall  be  deemed  fraudu- 
lent in  favor  of  a  subsequent  purchaser,  who  shall  have  ac- 
tual or  legal  notice  thereof  at  the  time  of  his  purchase,  unless 
it  shall  appear  that  the  grantee  in  such  conveyance,  or  per- 
son to  be  benefitted  by  such  charge,  was  privy  to  the  fraud 
intended."  [Id.,  Sec.  2.] 

"  Every  conveyance  or  charge,  of  or  upon  any  estate  or 
interest  in  lands,  containing  any  provision  for  the  revocation, 
determination  or  alteration  of  such  estate  or  interest,  or  any 
part  thereof,  at  the  will  of  the  grantor,  shall  be  void,  as 
against  subsequent  purchasers  from  such  grantor,  for  a  val- 
uable consideration,  of  any  estate  or  interest  so  liable  to  be 
revoked  or  determined,  although  the  same  be  not  expressly 
revoked,  determined  or  altered  by  such  grantor,  by  virtue 
of  the  power  reserved  or  expressed  in  such  prior  conveyance 
or  charge."  [Id.,  Sec.  3.] 

"  When  a  power  to  revoke  a  conveyance  of  any  lands,  or 
the  rents  and  profits  thereof,  and  to  re-convey  the  same,  shall 
be  given  to  any  person  other  than  the  grantor  in  such  con- 
veyance, and  such  person  shall  thereafter  convey  the  same 
13* 


306  EXECUTION  OF  DEEDS  AND  MORTGAGES  IN 

lands,  rents  or  profits,  to  a  purchaser  for  a  valuable  con- 
sideration, such  subsequent  conveyance  shall  be  valid  in 
the  same  manner,  and  to  the  same  extent,  as  if  the  power  of 
revocation  were  recited  therein,  and  the  intent  to  revoke  the 
former  conveyance  expressly  declared."  [Id.,  Sec.  4.] 

"  If  a  conveyance  to  a  purchaser,  under  either  of  the  last 
two  preceding  sections,  shall  be  made,  before  the  person 
making  the  same  shall  be  entitled  to  execute  his  power  of 
revocation,  it  shall  nevertheless  be  valid  from  the  time  the 
power  of  revocation  shall  actually  vest  in  such  person,  in 
the  same  manner  and  to  the  same  extent  as  if  then  made." 
[Id.,  Sec.  5.] 

"No  estate  or  interest  in  lands,  other  than  leases  for  a 
term  not  exceeding  one  year,  nor  any  trust  or  power  over  or 
concerning  lands,  or  in  any  manner  relating  thereto,  shall 
hereafter  be  created,  granted,  assigned,  surrendered  or  de- 
clared, unless  by  act  or  operation  of  law,  or  by  a  deed,  con- 
veyance, contract,  agreement,  note  or  memorandum  thereof, 
made  in  writing,  and  signed  by  the  party  creating,  granting, 
assigning,  surrendering  or  declaring  the  same,  or  by  some 
person  thereunto  by  him  lawfully  authorized  by  writ  i 
[R.  S.,  329,  Sec.  6.] 

"The  preceding  section  shall  not  be  construed  to  affect, 
in  any  manner,  the  power  of  a  testator  in  the  disposition  of 
his  real  estate  by  a  last  will  and  testament ;  nor  to  prevent 
any  trust  from  arising  or  being  extinguished,  by  implication 
or  operation  of  law ;  nor  to  prevent,  after  a  fine  shall  have 
been  levied,  the  execution  of  a  deed,  or  other  instrument  in 
writing,  declaring  the  uses  of  such  fine."  [Id.,  Sec.  7.] 

"  Every  contract  for  the  leasing  for  a  longer  period  than  one 
year,  or  for  the  sale  of  any  lands,  or  auy  interest  in  lands, 
shall  be  void,  unless  the  contract,  or  some  note  or  memoran- 
dum thereof,  be  in  writing,  and  signed  by  the  party  by  whom 
the  lease  is  to  be  made,  or  by  some  person  thereunto  by  him 
lawfully  authorized  by  writing."  [Id.,  Sec.  8.] 


MICHIGAN.  307 

"  The  consideration  of  any  contract  or  agreement,  or  note 
or  memorandum  thereof,  required  by  the  provisions  of  this 
chapter  to  be  made  in  writing-,  need  not  be  set  forth  in  such 
written  contract,  agreement,  note,  or  memorandum,  but  may 
be  proved  by  any  other  legal  evidence."  [Id.,  Sec.  9.] 

Nothing  in  this  chapter  contained  shall  be  construed  to 
abridge  the  powers  of  Courts  of  Equity  to  compel  the  spe- 
cific performance  of  agreements,  in  cases  of  part  perform- 
ance of  such  agreement."  [Id.,  Sec.  10.] 

In  addition  to  the  foregoing,  it  is  provided  that  every  con- 
veyance or  assignment  in  writing,  or  otherwise  made  \vith 
the  intent  to  hinder,  delay  or  defraud  creditors  or  other  per- 
sons of  their  lawful  suits,  damages,  forfeitures,  debts  or  de- 
mands shall  be  void,  as  against  the  person  or  persons  so  hin- 
dered, delayed  or  defrauded,  and  equally  void  as  against  the 
heirs,  successors,  personal  representatives  or  assignees  of  such 
creditors  or  purchasers..  So  also  is  every  grant  or  assign- 
ment of  any  existing  trust  in  lands,  unless  the  same  be  in 
writing,  and  lawfully  signed  and  acknowledged  or  proven. 
But  it  is  worthy  of  especial  notice,  that  the  question  of  fraud- 
ulent intent  in  all  the  foregoing  cases,  is  made  by  statute 
a  question  of  fact,  and  not  of  law,  or  the  presumption  of 
law.  Under  the  guaranties  of  the  organic  law,  it  may  be 
tried  by  a  jury,  before  whom  all  extenuating,  and  explana- 
tory facts  and  circumstances  may  be  adduced,  in  support  of 
the  good  faith  and  honesty  of  every  such  transaction."  [Id., 
332,  Sec.  4.]  For  the  legal  operation  of  a  deed,  see  ante,  84. 

VIII.  THE  PROOF  AND  ACKNOWLEDGMENT  OF  DEEDS  AND 
MORTGAGES  IN  MICHIGAN. 

All  deeds,  mortgages,  releases  of  mortgaged  premises,  sat- 
isfaction pieces,  leases  for  a  term  exceeding  seven  years, 
declarations  of  trust,  and  powers  to  convey  lands,  are  required 
to  be  acknowledged  or  proven,  (if  executed  within  this  State,) 
before  some  Justice  of  the  Peace,  Judge  of  the  Circuit,  District, 


308     ACKNOWLEDGMENT  OF  DEEDS  AND  MORTGAGES  IN 

or  Supreme  Court  of  the  State  of  Michigan,  or  Notary  Pub- 
lic, or  Master  in  Chancery ;  and  (if  executed  in  any  other 
State  or  Territory  in  the  United  States)  before  some  Judge, 
Justice,  or  other  officer,  who,  in  the  State  where  he  resides, 
is  authorized  to  take  acknowledgment  or  proof  of  deeds  by 
the  laws  thereof;  and  (if  executed  in  a  foreign  country)  be- 
fore the  officer  authorized  in  that  country  to  take  acknow- 
ledgments, and  also  before  any  Minister  Plenipotentiary, 
Consul,  or  Charge  d' Affairs  of  the  United  States,  duly  ap- 
pointed and  accredited.  [Sess.  Laws,  1840,  166.] 

But  in  respect  to  conveyances  executed  within  the  State 
of  Michigan,  proof  by  witnesses  is  regarded  as  evidence  of 
the  execution  thereof,  secondary  to  that  of  the  personal  ac- 
knowledgment of  the  fact  by  the  grantor.  Hence  it  is  pro- 
vided, that  the  conveyance  shall  be  acknowledged  "by  the 
party  making  such  deed,"  who  is  required  to  appear  in  per- 
son before  the  acknowledging  officer,  and  declare  to  him  the 
execution  of  the  instrument.  Yet,  "  When  any  grantor  shall 
die,  or  depart  from  this  State,  without  having  acknowledged 
his  deed,  the  due  execution  thereof  may  be  proved  by  the 
testimony  of  any  subscribing  witness  thereto,  before  any 
Court  of  Record  in  this  State;  and  if  all  the  subscribing 
witnesses  to  such  deed  shall  also  be  dead,  or  out  of  this 
State,  the  same  may  be  proved  before  any  Court  of  Record 
of  this  State,  by  proving  the  handwriting  of  the  grantor,  or 
any  subscribing  witness  "  [R.  S.,  259.] 

And  if  any  grantor  shall  refuse  to  acknowledge  his  deed 
on  application  to  a  Justice  of  the  Peace  residing  in  the 
county  where  the  grantor  resides,  a  summons,  with  a  copy 
of  the  deed  annexed,  may  be  issued  to  the  grantor,  requiring 
him  to  appear  before  the  Justice,  on  a  day  to  be  therein 
named,  and  hear  the  testimony  of  the  subscribing  witnesses 
to  such  deed ;  which  summons  is  required  to  be  served  at 
least  seven  days  before  the  day  therein  named  for  proving 
the  same.  At  the  hearing,  or  at  any  adjournment  there- 


MICHIGAN.  309 

of,  the  execution  of  the  deed  may  be  proved  by  one  or  more 
of  the  subscribing  witnesses,  after  being  duly  sworn  by  such 
officer. 

This,  in  general,  enables  a  grantee  to  get  his  deed  record- 
ed, even  though  the  grantor  refuse  to  acknowledge  it.  But 
where  the  witnesses  are  dead,  or  out  of  the  State,  and  the 
grantor  refuses  to  acknowledge  his  deed,  the  same  may  be 
proved  before  any  Court  of  Record,  after  first  summoning 
the  grantor,  by  proving  the  handwriting  of  both  the 
grantor  and  one  of  the  subscribing  witnesses.  But  in  no 
case  is  it  competent  to  prove  the  execution  of  a  deed  by 
a  femme  covert.  Her  rights  will  not  pass,  except  by  a  deed 
duly  acknowledged  by  her  before  the  officer,  '-'on  a  private 
examination,  separate  and  apart  from  her  husband,  that  she 
executed  the  deed  without  fear  or  compulsion  from  anyone." 
[Act  of  1840,  Sec.  4.] 

Having  seen  what  proof  or  acknowledgment  is  requisite 
to  a  conveyance  of  real  estate,  we  proceed  to  inquire  what 
evidence  is  required  that  the  statute  has  been  complied  with. 
This  is  answered  by  another  statute,  which  provides  that 
"  a  certificate  of  the  acknowledgment  of  the  deed,  under  the 
hand  of  the  officer  taking  the  same,  or  of  the  proof  taken  as 
above  provided,  before  any  court  or  Justice  of  the  Peace, 
by  the  Clerk  of  the  court,  or  the  Justice  respectively, 
shall  be  endorsed  on  the  deed,  or  annexed  thereto ;  and 
such  deed  and  certificate  may  be  recorded  at  length,  in  the 
registry  of  deeds  for  the  county  where  the  lands  lie  ;  and  no 
deed  shall  be  recorded  without  such  certificate."  [R.  S., 
260.] 

The  certificate  is  designed  to  be  the  evidence  that  the  re- 
quirements of  the  statute  have  been  observed ;  but  unless 
the  certificate  fully  set  forth  the  facts  required,  it  is  not  such 
evidence  as  will  entitle  the  deed  either  to  be  read  in  evi- 
dence, or  recorded.  A  certificate  that  a  deed  or  mortgage  has 
been  acknowledged  or  proven  according  to  law,  is  defective. 


310       ACKNOWLEDGMENT  OF  DEEDS  AND  MORTGAGES  IN 

It  is  not  for  the  acknowledging  officer  or  certifying  Clerk  to 
adjudge  that  the  law  has  been  complied  with,  but  to  set 
forth  the  facts,  that  the  public,  and  all  courts  having  juris- 
diction of  the  subject  matter,  may  see  and  determine  the  le- 
gality of  the  proof  or  acknowledgment. 

This  may  be  illustrated  by  the  case  of  an  acknowledgment 
by  a  femme  covert,  or  married  woman.  The  private  ac- 
knowledgment and  disavowal  of  fear  or  compulsion,  are  facts 
essential  to  the  validity  of  her  deed.  Neither  the  register, 
nor  any  court,  have  the  right  to  presume  a  fact  which  does 
not  appear  in  the  evidence.  Therefore,  unless  it  appear  in 
the  certificate,  that  the  private  examination  was  had,  and 
that  she  then  and  there  acknowledged  that  she  executed  the 
deed  freely  and  without  fear  or  compulsion  from  any  one, 
the  certificate  is  defective  for  any  purpose  whatever.  This 
illustration  answers  for  every  requirement  in  the  acknow- 
ledgment or  proof  of  a  deed,  mortgage,  or  other  instrument, 
relating  to  lands,  which  is  required  to  be  acknowledged  and 
recorded. 

This  topic  thus  far  relates  to  conveyances  executed  with- 
in the  State  of  Michigan.  Where  they  are  executed  in  oth- 
er States  or  Territories  the  rule  is  different.  The  statute 
accredits  a  deed  of  land  in  Michigan  owned  by  a  non-resi- 
dent, if  his  deed  be  executed  according  to  the  laws  of  the 
State  where  he  resides.  But  proof  that  a  conveyance  was 
so  executed  must  in  all  cases  accompany  it,  to  the  end  (hat 
it  may  be  seen  by  the  court,  the  register,  and  the  public,  that 
a  deed  has  been  so  executed.  Hence  it  is  provided,  that  a 
deed  with  the  certificate  of  acknowledgment  shall  be  accom- 
panied "  with  a  certificate  of  the  proper  County  Clerk  or  cer- 
tifying officer,  under  the  seal  of  his  office,  that  the  officer 
taking  the  acknowledgment  of  such  deed  is  such  officer  as 
by  his  certificate  of  acknowledgment  he  purports  to  be,  duly 
commissioned  and  qualified,  and  that  such  deed  is  executed 
according  to  the  laws  of  such  State  or  Territory." 


MICHIGAN  311 

The  "proper  certifying  officer"  is  generally  the  Clerk  of 
the  county  where  the  officer  taking  the  proof  or  acknow- 
ledgment resides,  and  who,  from  his  supposed  acquaintance 
with  the  official  character  and  signature  of  the  officer,  from 
the  rolls  of  office,  as  well  as  with  the  statutes  of  his  own 
State,  can  advisedly  certify  under  his  seal  of  office,  "that  the 
acknowledging  officer  is  such  officer,  duly  commissioned  and 
sworn,"  and  that  the  deed  was  executed  according  to  the 
laws  of  such  State  or  Territory.*  So  also  where  the  grantor 
resides  in  and  executes  a  deed  in  a  foreign  country.  The 
deed  may  be  recorded,  if  acknowledged  or  proven  according 
to  the  laws  of  such  foreign  country,  if  the  fact  be  made  to 
appear.  But  from  the  supposed  inconvenience  of  obtaining 
in  foreign  countries  the  certificate  of  a  County  Clerk,  authen- 
ticating that  of  the  acknowledging  officer,  it  is  provided  that 
a  second  acknowledgment  must  be  made  of  the  execution  of 
the  deed  before  a  Consul,  Charge  d'Affairs,  or  Minister  Plen- 
ipotentiary of  the  United  States.  The  coincidence  of  the 
Uvo  certificates  being  endorsed  upon,  or  annexed  to  the  deed, 
is  evidence  of  the  facts,  within  the  statutes  of  Michigan. 
Sess^Laws,  1840,  100.] 

IX.  THE  RECORDING  OF  DEEDS  AND  MORTGAGES  IN 
MICHIGAN  AND  THE  EFFECT  THEREOF. 

The  many  advantages  resulting  from  the  practice  of  regis- 
tering or  recording  muniments  of  title  to  lands,  have  com- 
mended it  to  public  favor  in  every  State.  Otherwise  than 
in  respect  to  the  officer  charged  with  that  responsible  duty, 
the  laws  of  each,  in  this  behalf,  are  substantially  the  same. 

In  the  political  organization  of  Michigan,  an  officer  called 
a  Register  of  Deeds,  has  been  provided  by  law.  He  is  cho- 
sen by  the  electors  once  in  two  years,  and  is  required  to  re- 
side., and  keep  his  office  at  the  county  seat  (called  "  the  seat 

*  The  keeper  of  the  rolls  of  office  which  the  acknowledging  officer  siffned,  and 
where  his  oath  is  deposited,  is  the  proper  certifying  officer. 


312  RECORDING  OF  DEEDS  AND  MORTGAGES  IN 

of  justice")  of  each  organized  county  in  the  State.  By  the 
former  statute  every  Register  of  Deeds  was  required  to  keep 
a  book,  in  which  he  was  required  to  enter  all  deeds  and 
other  instruments,  left  to  be  recorded,  and  all  copies  left  as 
cautions,  in  the  order  in  which  they  were  received  :  noting 
in  the  first  column  the  day,  hour  and  minute  of  the  recep- 
tion, and  the  other  particulars  in  the  appropriate  columns, 
and  every  instrument  so  entered  was  considered  as  recorded 
at  the  time  it  was  so  registered.  [R.  S.;  260,  Sec.  22.] 

He  was  also  required  to  keep  separately  from  the  books 
kept  for  the  registration  of  deeds  and  other  instruments,  a 
book  expressly  for  the  registering  of  mortgages,  and  also  a 
book  in  which  the  time  of  the  reception  of  each  mortgage, 
deed,  and  the  other  particulars  thereof,  were  required  to  be 
specifically  entered. 

He  is  now  required  to  record  conveyances  at  length,  and 
to  certify  upon  every  instrument  recorded  by  him,  the  time 
when  it  was  received,  and  the  number  of  the  book  and  page 
where  it  is  recorded.  [Id.,  261,  Sec.  24.]  But  every  deed, 
mortgage  or  other  instrument,  must  have  been  duly  executed 
to  authorize  or  warrant  him  in  making  a  record  thereof.  The 
certificate  of  acknowledgment  or  proof,  and  the  certificate  of 
authentication,  if  such  there  be,  must  show  the  facts  requi- 
site to  a  valid  execution  of  the  instrument,  and  if  executed 
out  of  this  State,  that  the  officer  taking  the  acknowledgment 
of  such  deed  is  such  officer  as  by  his  certificate  of  acknow- 
ledgment he  purports  to  be,  and  at  the  time  of  taking  the  ac- 
knowledgment or  proof  was  duly  commissioned  and  quali- 
fied, [Sess.  Laws  1839,  219,]  and  that  the  deed  was  exe- 
cuted according  to  the  laws  of  the  State  or  territory  where 
it  was  acknowledged.  [Id..  1840,  166.] 

The  last  provision  may  have  the  effect  to  supersede  the 
provision  contained  in  the  act  of  1839,  requiring  the  ceftifi- 
cate  of  the  proper  certifying  officer,  that  the  officer  taking 
the  acknowledgment  is  such  officer  as  by  his  certificate  he 


MICHIGAN.  313 

purports  to  be ;  nevertheless  as  the  statute  of  1839  was  not 
in  terms  repealed  by  that  of  1840,  both  requirements  are  re- 
commended to  avoid  any  question  concerning  the  authentica- 
tion. 

The  act  of  1839  requires  the  certificate  to  be  by  « the 
proper  certifying  officer,"  yet  in  the  act  of  1840  it  is  required 
to  be  by  "  the  proper  County  Clerk,  under  his  official  seal." 

It  is  presumed  that  the  Clerk  having  charge  of  the  rolls, 
and  in  whose  office  the  official  oath  of  the  acknowledging 
officer  shall  be  filed,  is  the  proper  officer  to  authenticate  the 
certificate  of  acknowledgment;  and  that  his  certificate,  under 
his  official  seal,  will  entitle  a  deed  otherwise  valid,  to  be  re- 
corded by  the  Register. 

Concerning  the  cancel ation  of  the  record  of  mortgages,  it 
is  provided  that  "  any  mortgage  that  has  been  registered  or 
recorded,  or  that  may  hereafter  be  recorded,  shall  be  discharg- 
ed upon  the  record  thereof  by  the  officer  in  whose  custody  it 
shall  be,  whenever  there  shall  be  presented  to  him  a  certifi- 
cate signed  by  the  mortgagee,  his  personal  representatives  or 
assigns,  acknowledged  or  proved  and  certified  as  hereinbefore 
prescribed,  to  entitle  conveyances  to  be  recorded,  specifying 
that  such  mortgage  has  been  paid,  or  otherwise  satisfied  and 
discharged,"  and  that  "  every  such  certificate  and  acknow- 
ledgment thereof  shall  be  recorded  at  full  length  ;  and  a  ref- 
erence made  to  the  book  and  page  containing  such  record 
in  the  minute  of  the  discharge  of  such  mortgage,  made  by 
the  officer  upon  the  record  thereof."  [Sess.  Laws  1839,  219.] 

In  1840  an  act  was  passed  providing  that  it  shall  be 
lawful  for  Registers  of  Deeds,  upon  payment  of  fees,  to  record 
all  deeds  at  length  in  his  office,  as  well  those  which  have 
been  registered  as  those  remaining  unregistered.  This,  most 
unquestionably,  is  the  better  practice  ;  whilst  it  prevents  mis- 
takes, it  gives  a  more  perfect  notice  to  the  subsequenf  pur- 
chasers and  incumbrancers.  The  records,  ry  an  act  since 
passsd,  are  required  to  ba  indexed  in  a  book  to  bj  prepared 
14 


314  WILLS  OF  REAL  ESTATE  IN 

and  kept  by  each  Register  for  that  purpose,  in  order  that  the 
records  containing  the  title  of  lands  may  be  more  readily  re- 
ferred to,  and  searches  of  land  titles  thereby  facilitated. 
[Sess.  Laws,  1841.] 

The  effect  of  the  recording  of  deeds  and  mortgages  in 
Michigan  is  not  as  definitely  indicated  in  the  statutes  of  such 
State,  as  in  those  of  New- York  ;  yet  the  recording  is  adjudg- 
ed to  be  a  constructive  notice  to  all  the  world  of  the  exist- 
ence of  the  conveyance  recorded,  and  presumptive  evidence 
of  the  grantee's  title  ;  and  that  his  deed  which  is  first  record- 
ed, obtains  priority  over  other  conveyances  not  recorded,  of 
which  he  has  no  notice.  The  record  also  protects  him 
against  the  mischiefs  of  fraud.*  [R.  S.,  260,  Sec.  25.] 

*Non  resident  land  owners  are  informed  that  Michigan  now  contains  the  several 
counties  herein  presented  in  small  capitals.  The  county  seats  of  such  of  them  as 
have  been  organized  and  have  them,  are  annexed  in  roman  letters.  The  counties 
of  Chippeway  Michillimackinac,  Houghton,  Schoolcraft,  Ontonagon  and  Marquctte, 
are  upon,  the  upper  peninsula,  and  the  balance  upon  the  lower.  The  statement  is 
given  on  the  authority  of  Messrs.  Stewart  and  Gray,  Counsellors  at  Law  of  Detroit, 
\vho  prepared  the  same  from  documents  in  the  Auditor  General's  office,  and  the 

same  is  believed  to  be  reliable,  viz  :  ALLEGAN,  Allegan  ;  ALCONA, ;  ALPENA, 

;  ANTRIM, ;  ARRENAC, ;  BARRY,  Hastings ;  BERRiKN,Ber- 

rien;  BRANCH,  Coldwater;  CALHOUN,  Marshall;  CASS,  Cassopolis;  CLARE 

— — ;  CHIPPEVVA,  Sault  Ste  Marie;  CHEBOYGAN,  ;  CHARLEVOIX, 

— — ;  CRAWFORD, ;  CLINTON,  De  Witt;  EATON,  Charlotte ;  EMMETT, 

;  GLADWIN,  ;  GENESEE,  Flint;  GRATIOT,  ;  HILLSDALK, 

Hillsdale;  HOUGHTON,  Copper  Harbor;  HURON,  ;  ISABELLA,  ; 

IONIA,  Ionia;  losco, ;  INGHAM  Mason;  JACKSON,  Jackson;  KALAMAZOO, 

Kalamazoo;  KALKASKA  ;  KENT,  Grand  Rapids;  LAKE, ;  LAPEER, 

Lapeer;  LEELANAN, ;  LENAWEE,  Adrian ;  LIVINGSTON,  Howell;  MJECOSTA, 

• ;  MACOMB,  Mt.Clement;  MARQUETTE  — — — — ;  MANISTEE ;  MASON, 

;  MICHILLIMACINACK,  Michillimacinack ;  MISSAUKEE, ;  MIDLAND, 

;  MONTCALM, ;  MONROE, Monroe;  NEWAYGO, ;  O.NTONAOON, 

— — ;  OTSEGO, OMEENA, ;  Oscoda,  ;  OGENAW,  • ; 

OSEOLA, ;  OCEANA  ;  OTTAWA,  Graiidhaven ;  OAKLAND,  Pontiac  ; 

PRESQE  ISLE, ;  ROSCOMMON, ;  SAGINAW,  Saginaw  City;  SHIAWAS- 

SEE,  Corruna;  SANILAC, ;  St.  GLAIR,  Palmer;  ST.  JOSEPH,  Centreville; 

TUSCOLA,  ;  VAN  BUREN,  Paw  Paw;  WYANDOT,  — ;  WEXFORD, 

;  WASHTENAW,  Ann  Arbor;  WAYNE,  Detroit. 


MICHIGAN.  315 

X.    WILLS  OF  REAL  ESTATE  IN  MICHIGAN. 

By  the  revised  statutes  of  Michigan,  "  every  person  of  full 
age  and  sound  mind,  being  seized  in  his  own  right  of  any 
lands,  tenements  or  hereditaments,  or  of  any  right  thereto,  or 
entitled  to  any  interest  therein,  descendible  to  his  heirs,"  may 
devise  and  dispose  of  the  same  by  will,  in  writing,  signed 
by  himself,  or  by  some  other  person  in  his  presence  by  his 
express  directions,  and  (if  made  within  the  State)  attested  and 
subscribed  in  his  presence  by  three  or  more  competent  wit- 
nesses. [R.  S.,  270,  and  Sess.  Laws  of  1S39.  220.] 

Minors  have  neither  the  legal  capacity  to  convey  nor  to  de- 
vise real  estate.  Full  age  or  majority  is  requisite  to  a  testa- 
tor's competency. 

He  must  be  of  sound  mind.  Lunacy,  idiocy  and  imbecil- 
ity, are  visitations  which  impair  the  mind  and  more  or  less  de- 
range or  hallucinate  the  intellect,  and  destroy  the  understand- 
ing. Literally,  a  mind  that  is  at  all  shattered  or  diseased  is 
unsound ;  but  judicially,  a  mind  is  unsound  only  when  its 
faculties  are  so  far  impaired  or  deranged  that  the  incumbent 
is  disabled  from  understanding  the  nature  and  consequences 
of  the  act  which  he  performs.  In  Michigan  the  question  of 
sanity  or  mental  soundness  has  undergone  much  judicial  in- 
vestigation ;  and  since  insanity  has  come  to  be  regarded  as  a 
disease,  variously  developed  and  exhibited,  in  some  cases 
partial  and  in  others  general,  it  is  found  to  be  the  most  diffi- 
cult of  all  questions  of  fact  to  he  determined,  whether  the 
unsoundness  in  a  given  case,  where  there  is  any  sanity  ex- 
hibited, is  such  that  it  should  invalidate  a  will  or  deed. 

Wills  must  be  in  writing.  No  particular  form  of  words 
has  been  prescribed  for  a  valid  will.  If  such  words  be  em- 
ployed as  intelligibly  communicate  to  the  reader  the  pleasure 
of  the  testator  as  to  the  disposition  of  his  property  after  his 
decease,  and  such  instrument  be  legibly  written,  it  will  suf- 
fice. Nor  does  the  statute  prescribe  the  material  upon  which 


316  DEVISES  IN 

they  shall  be  written,  yet  it  is  presumed  that  the  same  rule 
applies  which  governs  deeds.  It  should  be  paper,  parch- 
ment or  some  similar  preparation.  In  a  sense,  wills  are  but 
conveyances  of  real  estate  ;  and  as  far  as  practicable,  they 
should  be  subjected  to  the  same  rules. 

They  must  be  signed — signed  by  the  testator  or  by  some 
other  person  in  his  presence  and  by  his  express  direction. 
It  is  immaterial  which  of  these  requirements  is  complied  with, 
as  the  testator's  presence  is  requisite  to  the  execution  of  the 
instrument.  Either  his  name  or  his  mark  subscribed  thereto 
will  answer  the  statute,  but  if  either  be  placed  to  a  will  by  a 
person  other  than  the  testator,  the  attestation  clause  should 
mention  the  fact. 

They  must  be  attested.  No  will  is  valid  unless  attested 
and  subscribed  in  the  presence  of  the  testator  by  at  least  three 
competent  witnesses.  The  attestation  must  be  of  the  whole 
of  the  execution,  and  not  of  a  portion  of  it.  On  the  probate, 
a  witness  who  subscribes  a  will,  will  be  presumed  to  have  wit- 
nessed both  the  declaration  and  the  signing  by  the  testator ; 
and  if  on  a  cross-examination  it  turn  out  that  he  did  not,  his 
testimony  falls  short  of  the  point  intended  to  be  reached  by 
the  law.  Every  person  of  full  age  and  sound  mind  may 
dispose  of  his  property  by  will,  is  the  language  of  the  law ; 
and  witnesses  are  required  to  testify  as  well  of  the  condition 
of  the  testator's  mind,  at  the  time  of  executing  a  will,  as 
that  he  did  execute  it.  Hence  the  law  contemplates  the  at- 
testation of  both ;  and  if  the  witness  believe  the  testator's 
mind  unsound,  he  should  refuse  to  subscribe  any  paper  pur- 
porting to  be  his  will. 

It  is  tke  policy  of  the  law,  that  the  property  of  a  decedent 
shall  go  to  the  heirs  according  to  the  statute  of  descents,  un- 
less it  affirmatively  appear  that  a  voluntary,  lucid  and  sane 
disposition  of  it  has  been  made  by  his  written  will.  In 
guarding  this  right,  the  Legislature  has  presumed  that  at- 
testing witnesses  will  apprehend  the  reasons  for  their  attesta- 


MICHIGAN.  317 

tion,  and  observe  the  requirements  with   faithfulness  and 
care. 

The  number  of  attesting  witnesses  has  been  fixed  at 
three ;  and  these  are  required  to  be  competent  witnesses. 
By  this,  is  meant,  witnesses  competent  to  be  sworn  and  to 
testify  in  the  Court  of  Probate,  of  the  facts  relating  to  the 
execution  of  a  will.  They  should  not  be  legatees  or  bene- 
ficiaries under  the  will,  because  they  would  be  interested  in 
sustaining  the  will  after  the  testator's  death.  They  should 
not  be  infamous  persons,  who  have  lost  their  credibility  by 
conviction  of  infamous  crimes  ;  but  should  be  selected  with  a 
view  to  their  testimony  on  the  probate  of  the  instrument. 
Nevertheless,  if  the  witnesses  are  competent  at  the  time  of 
attesting  the  execution  of  the  will,  their  subsequent  incom-, 
petency,  from  whatever  cause  it  may  arise,  will  not  prevent 
the  probate  and  allowance  of  the  will,  if  it  be  otherwise  satis- 
factorily proved.  [R.  S.,  271,  Sec.  5.] 

It  is  also  provided,  that  "all  beneficial  devises,  legacies, 
and  gifts,  whatsoever,  made  or  given,  in  any  will,  to  a  sub- 
scribing witness  thereto,  shall  be  wholly  void,  unless  there 
be  three  other  competent  subscribing  witnesses  to  the  same ; 
yet  a  mere  charge  on  the  lands  of  the  devisor,  for  the  pay- 
ment of  his  debts,  shall  not  prevent  his  creditors  from  being 
competent  witnesses  to  his  will.  But  if  such  witness,  to 
whom  any  beneficial  devise  or  legacy  may  have  been  made 
or  given,  would  have  been  entitled  to  any  share  of  the  testa- 
tor's estate,  in  case  the  will  was  not  established,  then  so 
much  of  the  share  that  would  have  descended  or  have  been 
distributed  to  such  witness,  shall  be  saved  to  him,  as  will 
not  exceed  the  value  of  the  devise  or  bequest  made  to  him 
in  the  will,  and  he  may  recover  the  same  of  the  devisees  or 
legatees  named  in  the  will,  in  proportion  to,  and  out  of  the 
parts  devised  and  bequeathed  to  them."  [Id.,  271,  Sec.  6.] 

In  subscribing  a  will,  the  witnesses  should  all  attach 
thereto  the  places  of  their  residence.  This,  however,  is  not 


318  DEVISES  IN 

as  expressly  required  in  Michigan  as  in  New- York  ;  but  the 
practice,  nevertheless,  is  attended  with  so  many  advantages, 
that  the  writer  is  warranted  in  giving  the  direction.  The 
attestation  clause  should  recite  that  the  (foregoing)  will  was 
executed  and  published  by  the  testator,  and  by  him  declared 
to  be  his  last  will  and  testament,  in  the  presence  of  the  said 
witnesses,  and  that  thereupon,  on  such  a  day,  (naming  it,) 
being  the  day  of  the  signing  and  publishing  thereof  by  said 
testator,  (naming  him,)  at  the  request  of  him,  the  said  testa- 
tor, and  in  his  presence,  and  in  the  presence  of  each  other, 
the  said  witnesses  subscribed  their  names  thereto  as  witness- 
es, and  to  their  names  affixed  their  places  of  residence. 

Supplements  and  codicils  are  required  to  be  executed  in 
the  same  manner  and  with  the  same  formality  as  wills. 

Upon  the  execution  of  any  will,  the  same  may  be  sealed 
up  in  an  envelop,  and  kept  by  the  testator,  or  by  any  other 
person,  until  the  testator's  decease.  If  delivered  to  and  kept 
by  any  person  other  than  the  Judge  of  Probate,  such  person 
is  required  to  deliver  the  same  to  the  Judge  within  thirty 
days  after  the  testator's  decease,  and  in  case  of  refusal,  he 
may  be  imprisoned,  and  also  subjected  to  damages,  at  the  suit 
of  the  party  aggrieved.  [R.  S.,  272,  Sec.  12.] 

It  is  further  provided,  that  any  will  in  writing,  being  en- 
closed in  a  sealed  wrapper,  and  having  endorsed  thereon  the 
name  of  the  testator  and  his  place  of  residence,  and  the  day 
when,  and  the  person  by  whom  it  is  delivered,  may  be  de- 
posited by  the  person  making  the  same,  or  by  any  person  for 
him,  with  the  Judge  of  Probate,  in  the  county  where  the  tes- 
tator lives ;  and  the  Judge  of  Probate  is  obliged  to  receive 
and  safely  keep  such  will,  and  give  a  certificate  of  the  de- 
posit thereof.  "  Such  will  shall,  during  the  life  time  of  the 
testator,  be  delivered  only  to  some  person  authorized  by 
him,  by  an  order  in  writing,  duly  proved  by  the  oath  of  a 
subscribing  witness  ;  and  after  the  death  of  the  testator, 
and  at  the  first  Probate  Court  held  after  notice  thereof, 


MICHIGAN.  319 

it  is  required  to  be  publicly  opened  by  the  Judge  of  Pro- 
bate, and  retained  by  him ;  and  the  Judge  of  Probate 
shall  give  notice  of  such  will  being  in  his  possession,  to 
the  executor  therein  appointed,  if  any  such  there  be,  other- 
wise to  the  persons  interested  in  the  provisions  of  the  will ; 
or  if  the  jurisdiction  of  the  case  belong  to  any  other  court,  such 
will  shall  be  delivered  to  the  executor,  or  to  some  other  trusty 
person  not  interested  in  the  provisions  of  the  same,  to  be 
presented  for  probate  in  such  other  court."  [Id.,  272,  Sec.  10.] 

In  respect  to  the  revocation  of  wills  in  writing,  it  is  provi- 
ded, "  that  no  will,  or  any  part  thereof,  shall  be  revoked,  un- 
less by  burning,  tearing,  canceling,  or  obliterating  the  same, 
with  the  intention  of  revoking  it,  by  the  testator  himself,  or 
by  some  person  in  his  presence  and  by  his  direction  ;  or  by 
some  other  will  or  codicil  in  writing,  or  by  some  other  wri- 
ting, signed,  attested,  and  subscribed,  in  the  manner  provided 
for  the  making  of  a  will ;  excepting,  only,  that  nothing  con- 
tained in  this  section  shall  prevent  the  revocation  implied  by 
law  from  subsequent  changes  in  the  condition  or  circumstan- 
ces of  the  testator."  [Id.,  Sec.  9.] 

Whilst  it  is  the  obvious  purpose  of  the  Legislature  of 
Michigan  to  recognize  the  right  of  every  man  to  dispose  of 
his  property  as  may  seem  to  him  best,  it  has  been  deemed 
expedient  to  place  around  that  right  certain  guards  against 
the  ill  effects  of  forgetfulness  and  inadvertaricy,  upon  the 
lawful  heirs  of  the  testator's  body.  It  is  therefore  provided, 
that  "  when  any  testator  shall  omit  to  provide  in  his  will  for 
any  of  his  children,  or  for  the  issue  of  any  deceased  child, 
they  shall  take  the  same  share  of  his  estate,  both  real  and 
personal,  that  they  would  have  been  entitled  to  if  he  had 
died  intestate  ;  unless  they  shall  have  been  provided  for  by 
the  testator  in  his  lifetime,  or  unless  it  shall  appear  that  such 
omission  was  intentional,  and  not  occasioned  by  any  mistake 
or  accident."  [Id.,  274,Sec.  19.] 

Unless  it  shall  appear  on  the  probate  of  the  will,  that  such 


320  DEVISES  IN 

omission  was  intentional,  and  not  occasioned  by  mistake  or 
accident,  or  that  the  child,  or  issue  of  any  deceased  child 
was  provided  for,  the  will  becomes  ineffectual,  as  to  the  heir 
omitted.  Nothing  can  legally  appear,  except  from  proof, 
either  of  an  intrinsic  or  extrinsic  character.  The  mention 
of  advances,  or  of  all  the  children  of  the  testator,  or  the 
children  of  such  as  shall  have  deceased,  would  be  proof  in- 
trinsic in  favor  of  the  will,  and  is  a  convenient  way  of  pro- 
viding against  successful  contestation.  Any  proof,  however, 
will  be  received,  which  bears  upon  the  facts,  but  the  onus 
probandi  rests  upon  the  executors,  or  legatees,  under  the 
will,  who  are  interested  in  sustaining  it. 

"  When  any  child  of  a  testator,  born  after  his  father's 
death  shall  have  no  provision  made  for  him  by  his  father,  in 
his  will,  or  otherwise,  he  shall  take  the  same  share  of  his 
father's  estate,  both  real  and  personal,  as  he  would  have  been 
entitled  to  if  his  father  had  died  intestate."  [Id.,  Sec.  20.  J 

In  the  two  cases  last  mentioned,  where  an  omitted  or  pos- 
thumous heir  is  found  to  be  entitled  to  take,  notwithstanding 
the  will,  his  or  her  distributive  share  is  required  to  be  taken 
from  all  the  devisees  and  legatees  respectively,  in  proportion 
to  their  interests  under  the  will,  unless  there  shall  be  some 
specific  devise  or  bequest,  which,  in  equity,  requires  a  differ- 
ent apportionment."  [Id.,  Sec.  21.] 

It  is  further  provided  that  when  a  devise  of  real  or  person- 
al estate  is  made  to  any  child,  or  other  relation  of  the  testator, 
and  the  devisee  shall  die  before  the  testator,  leaving  issue 
who  survive  the  testator,  such  issue  shall  take  the  estate  so 
devised,  in  the  same  manner  as  the  devisee  would  have  done 
if  he  had  survived  the  testator,  unless  a  different  disposition 
thereof  shall  be  made  or  required  by  the  will.  [Id.,  Sec.  22.] 

Executors  of  a  will  may  be  named  or  omitted,  at  the 
pleasure  of  the  testator ;  so  also  may  guardians  of  his  minor 
children  be  appointed  or  omitted,  the  Judge  of  Probate  hav- 
ing power  to  appoint  persons  to  execute  a  will,  and  persons 


MICHIGAN. 

to  act  as  guardians,  where  none  are  appointed  therein.  And 
whether  executors  and  guardians  be  appointed  by  the  testa- 
tor or  not,  both  are  required  to  give  security  for  the  faithful 
performance  of  their  trust,  before  assuming  it,  except  in  the 
case  of  a  guardian  where  the  will  otherwise  directs. 

XI.  THE  PROBATE  AND  RECORDING  OF  WILLS  IN  MICHI- 
GAN. 

In  each  organized  county  in  Michigan,  there  is  required 
to  be  elected  at  a  general  election,  a  Judge  of  Probate, 
whose  term  of  office  is  four  years.  This  officer  is  invested 
with  judicial  power,  in  all  matters  relating  to  the  settlement 
of  estates  of  deceased  persons,  executors,  administrators,  in- 
fants and  guardians,  and  is  charged  with  the  keeping  of  the 
seal,  books,  files  and  papers  belonging  to  the  Court  of  Pro- 
bate, and  is  required  to  keep,  or  cause  to  be  kept,  a  correct 
record  of  all  orders,  decrees,  and  other  official  acts ;  which 
record  is  by  law  subject  to  the  inspection  of  all  persons  in- 
terested, without  charge.  In  this  court  of  the  proper  coun- 
ty, all  wills  of  real  and  personal  estate  are  required  to  be 
proved  and  recorded  ;  for  it  is  provided  that  no  will  shall  be 
effectual  to  pass  either  real  or  personal  estate,  unless  it  shall 
have  been  duly  proved  and  allowed  in  the  Probate  Court ; 
and  that  the  probate  of  a  will  shall  be  conclusive  evidence 
of  its  due  execution.  [R.  S.,  275,  Sec.  12.J 

Applications  to  the  Probate  Court,  for  the  proof  of  any 
will,  after  the  decease  of  the  testator,  may  be  made  by  any 
person  having  an  interest  therein,  or  in  its  execution,  or  by 
any  heir  of  the  testator,  in  writing.  Such  applications  are 
usually  in  the  form  of  a  petition,  duly  verified,  praying  for 
citations  to  the  "  heirs  and  next  of  kin  of  the  deceased."  On 
the  return  of  such  process,  or  upon  some  other  day  or  term 
to  which  the  hearing  may  be  adjourned,  it  is  the  duty  of  the 
Judge  to  examine  the  subscribing  witnesses,  and  such  others 
as  may  be  produced,  and  to  hear,  determine,  and  adjudge 


STATUTE  OF  DESCENTS  IN 

upon  all  matters  relating  as  well  to  the  capacity  of  the  testa- 
tor, as  to  the  validity  in  other  respects,  of  the  will  produced. 
If  it  appear,  however,  hy  the  consent  in  writing  of  all  the 
heirs  at  law,  or  by  other  satisfactory  evidence,  that  no  person 
interested  in  the  estate  intends  to  object  to  the  probate  of  the 
will,  he  has  a  discretion  to  grant  probate  thereof,  upon  the 
testimony  of  one  subscribing  witness,  without  requiring  the 
attendance  of  all  of  them,  although  the  others  should  be 
within  reach  of  the  process  of  the  court.  [Id.,  Sec.  13.] 

In  relation  to  foreign  wills,  it  is  provided  that  if  they  shall 
have  been  proved  and  allowed  in  any  other  of  the  United 
States,  or  in  any  foreign  country,  according  to  the  laws  of 
such  State  or  territory,  or  country,  they  may  be  allowed 
and  recorded  in  Michigan,  in  the  manner  and  for  the  pur- 
poses following :  "  a  copy  of  the  will  and  of  the  probate  there- 
of, duly  authenticated,  shall  be  produced  by  the  executor,  or 
by  any  person  interested  therein,  to  the  Judge  of  Probate,  in 
any  county  in  which  there  is  any  e'state,  real  or  personal,  on 
which  the  will  may  operate,  whereupon  the  Judge  shall  as- 
sign the  time  and  place  for  hearing  the  case,  and  shall  cause 
notice  thereof  to  all  persons  interested,  to  be  given  in  some 
public  newspaper,  three  weeks  successively,  the  first  publi- 
cation to  be  thirty  days  at  least  before  the  time  so  assigned. 
And  if,  upon  the  hearing,  it  shall  appear  to  the  Judge  that 
the  instrument  ought  to  be  allowed  in  Michigan  as  the  last 
will  and  testament  of  the  deceased,  he  shall  order  the  copy 
to  be  filed  and  recorded,  and  letters  testamentary  or  of  ad- 
ministration with  the  will  annexed,  as  the  case  may  be,  to 
issue  thereon,  the  same  as  if  said  will  had  been  originally 
proved  in  Michigan." 

XTI.    THE    STATUTE    OP    DESCENTS    IN    MICHIGAN. 

The  statutes  provide  that,  "  when  any  person  shall  die, 
seized  of  any  lands,  tenements,  or  hereditaments,  or  of  any 
right  thereto,  or  entitled  to  any  interest  therein,  in  fee  sim- 


MICHIGAN.  323 

pie,  or  for  the  life  of  another,  not  having  lawfully  derived  the 
same,  they  shall  descend,  subject  to  his  debts,  in  manner  fol- 
lowing : 

1.  In  equal  shares  to  his  children,  and  to  the  issue  of  any 
deceased  child  by  right  of  representation  ;  and  if  there  be  no 
child  of  the  intestate  living  at  his  death,  his  estate  shall  dej 
scend  to  all  his  other  lineal  descendants ;  and  if  all  the  said 
descendants  are  in  the  same  degree  of  kindred  to  the  intes- 
tate, they  shall  have  the  estate  equally  ;  otherwise  they  shall 
take  according  to  the  right  of  representation. 

2.  If  he  shall  leave  no  issue,  his  estate  shall  descend  to 
his  father. 

3.  If  he  shall  leave  no  issue,  nor  father,  his  estate  shall 
descend  in  equal  shares  to  his  brothers  and  sisters,  and  to 
the  children  of  any  deceased  brother  or  sister,  by  right  of 
representation  ;  provided,  that  if  he  shall  leave  a  mother  also, 
she  shall  take  an  equal  share  with  his  brothers  and  sisters. 

4.  If  the  intestate  shall  leave  no  issue,  nor  father,  and  no 
brother,  nor  sister,  living  at  his  death,  his  estate  shall  descend 
to  his  mother,  to  the  exclusion  of  the  issue,  if  any,  of  deceas- 
ed brothers  or  sisters. 

5.  If  the  intestate  shall  have  no  issue,  and  no  father,  moth- 
er, brother,  nor  sister,  his  estate  shall  descend  to  his  next 
of  kin  in  equal  degree  ;  excepting,  that  where  there  are  two 
or  more  collateral  kindred   in  equal  degree,  but  claiming 
through  different  ancestors,  those  who  claim  through  the 
nearest  ancestor  shall  be  preferred  to  those  claiming  through 
an  ancestor  more  remote  ;  provided,  however, 

6.  If  any  person  shall  die,  leaving  several  children,  or 
leaving  one  child,  and  the  issue  of  one  or  more  others,  and 
any  such  surviving  child  shall  die  under  age,  and  not  having 
been  married,  all  the  estate  that  came  to  the  deceased  child 
by  inheritance  from  such  deceased  parent,  shall  descend  in 
equal  shares  to  the  other  children  of  the  same  parent,  and  to 


STATUTE  OF  DESCENTS  IN 

the  issue  of  any  such  other  children  who  shall  have  died,  by 
right  of  representation. 

7.  If,  at  the  death  of  such  child  who  shall  die  under  age, 
and  not  having  been  married,  all  the  other  children  of  his 
said  parent  shall  also  be  dead,  and  any  of  them  shall  have 
left  issue,  the  estate  that  came  to  said  child  by  inheritance 
from  his  said  parent  shall  descend  to  all  the  issue  of  the 
other  children  of  the  same  parent ;  and  if  all  the  said  issue 
are  in  the  same  degree  of  kindred  to  the  said  child,  they  shall 
share  the  said  estate  equally  ;  otherwise,  they  shall  take  ac- 
cording to  the  right  of  representation. 

8.  If  the  intestate  shall  leave  no  kindred,  his  estate  shall 
escheat  to  the  people  of  this  State."     [R.  S.,  268,  Sec.  1.] 

It  is  further  provided,  that  illegitimates  shall  inherit  from 
their  mother  the  same  as  if  born  in  wedlock  ;  but  they  can- 
not claim  any  part  of  the  estate  of  any  of  her  kindred,  either 
lineal  or  collateral,  by  reason  of  their  representation  of  their 
mother.  The  mother  is  the  lawful  heir  of  an  illegitimate 
who  dies  intestate  without  issue,  except  where,  after  the  birth 
of  an  illegitimate,  the  parents  intermarry,  and  the  father,  af- 
ter the  marriage,  acknowledge  the  illegitimate  as  his  child. 
In  such  case,  the  child  is  held  by  statute,  to  be,  to  all  intents 
and  purposes,  legitimate ;  hence,  the  mother  is  not  then  the 
heir.  Posthumous  children  are  considered  as  living  at  the 
death  of  their  parent.  [Id.,  Sec.  13.] 

Kindred  of  the  half  blood  inherit  equally  with  those  of  the 
whole  blood.  In  computing  the  degrees  of  kindred,  the  stat- 
ute requires  the  rules  of  the  civil  law  to  be  followed.  They 
alone  control. 

XIII.  THE  LEVY  AND  COLLECTION  OF  LAND  TAXES  IN 
MICHIGAN. 

All  real  estate  in  Michigan,  with  the  exceptions  hereinaf- 
ter enumerated,  is  subject  to  taxation,  and  for  that  purpose 


MICHIGAN.  325 

the  term  includes  as  well  all  lands  within  the  State,  as  all 
buildings  and  things  erected  thereon  or  affixed  thereto.  The 
exemptions  are,  all  property  of  the  United  States,  or  of  this 
State ;  all  the  public  or  corporate  property  of  the  several 
counties,  cities,  townships,  villages,  and  school  districts  ;  the 
real  estate  of  all  literary,  benevolent,  charitable,  and  scien- 
tific institutions ;  all  property  exempt  from  execution  ;  all 
houses  of  religious  worship,  tombs,  and  rights  of  burial ;  and 
all  estates  of  Indians.  The  statute  provides  that  taxes  on 
real  estate  shall  be  assessed  in  the  township  where  the  es- 
tate lies,  to  the  person  who  shall  be  either  the  owner,  or  in 
possession  thereof,  on  the  third  Monday  in  April  in  each 
year ;  and  in  cases  of  mortgaged  real  estate,  the  mortgagor 
shall  be  deemed  the  owner,  and  be  taxable  therefor  until  the 
mortgagee  shall  take  possession  thereof;  after  which,  the 
mortgagee  shall  be  deemed  the  owner.  [R.  S.,  77.] 

By  an  act  passed  in  1843,  it  was  provided,  that  the  Super- 
visors of  towns,  in  the  towns  where  there  shall  bo  no  Asses- 
sors elected,  (and  where  Assessors  are  elected,  then  the  Asses- 
sors, being  two  in  number,)  shall,  between  the  third  Monday 
in  April  and  the  third  Monday  in  May  in  each  year,  make 
out  an  assessment  roll  of  all  the  taxable  property  in  their 
townships,  either  by  visiting  the  residence  of  each  individ- 
ual, or  inquiring  personally  of  the  owner,  or  occupant,  of  any 
estate  to  be  taxed,  if  said  owner  reside  within  said  township, 
and  shall  appraise  the  same  at  its  true  cash  value.  And  in 
all  cases  where  the  owner  is  an  occupant,  the  assessment 
shall  be  in  his  name,  but  otherwise,  in  the  name  of  the  occu- 
pant ;  and  where  a  farm  lies  in  two  or  more  townships,  the 
farm  shall  be  assessed  in  the  township  where  the  mansion 
house  may  be,  and  no  other.  After  the  assessment  roll  is 
completed,  a  day  fixed  by  law  is  given  until  which  any  per- 
son aggrieved  may  show  cause  by  affidavit,  or  other  satisfac- 
tory evidence,  why  it  should  be  altered  ;  and  on  the  day  when 
the  Assessors  meet  to  review  their  assessment,  the  evidence 


326      LEVY  AND  COLLECTION  OF  LAND  TAXES  IN 

shall  be  considered,  and  they  may  alter  the  estimated  value 
thereof;  but  when  the  party  makes  affidavit  of  the  value,  it 
shall  be  assessed  at  the  value  sworn  to.  [Sess.  Laws  1843, 
64,  Sec.  14] 

"  The  assessment  roll  shall  contain  the  names  of  the  resi- 
dent persons  liable  to  be  taxed  ;  a  full  and  perfect  description 
of  the  real  estate  of  such  persons ;  the  number  of  acres  in 
each  tract  or  parcel ;  the  value  of  each  tract  or  parcel ;  the 
aggregate  valuation  of  the  personal  estate  of  such  person ; 
for  which  purposes  the  Auditor  General,  before  the  third 
Monday  of  April  in  each  year,  shall  prepare  and  transmit 
suitable  blanks  to  the  several  County  Treasurers,  who  shall 
immediately  supply  all  the  Assessors  with  the  same,  which 
shall  be  in  such  form  as  the  Auditor  General  shall  direct" 
[Id.,  Sec.  15.] 

"  The  Assessors  shall  assess  all  lands  in  their  townships 
as  non-resident  lands,  which  are  unoccupied  and  unclaimed 
by  any  resident  of  their  township,  and  shall  enter  the  same 
on  a  part  of  the  roll  separate  from  that  containing  the  estate 
of  residents."  [Id.,  Sec.  17.] 

The  assessment  having  been  completed,  is  returned,  duly 
certified,  to  the  Board  of  Supervisors  of  the  county,  which 
meets  on  the  second  Monday  in  October.  [Sess.  Laws  1844.] 

It  is  the  duty  of  this  Board,  in  connection  with  the  County 
Treasurer,  to  review  and  equalize  the  assessments  ;  to  correct 
descriptions  of  lands ;  to  obtain  from  Town  Clerks  the 
amount  of  moneys  to  be  raised  for  town  purposes,  highways, 
bridges,  and  schools ;  to  ascertain  the  amount  necessary  to 
be  raised  for  county  purposes,  and  as  a  State  tax,  and  there- 
upon to  order  a  tax  to  be  levied  for  the  amount.  Each  Su- 
pervisor, after  having  obtained  a  certificate  from  the  Clerk  of 
the  Board,  of  the  tax  to  be  levied  in  his  town,  is  required  to 
notify  the  Township  Treasurer  of  the  amount,  and  after  such 
Treasurer  shall  have  given  security  for  its  collection,  to  de- 
liver him  the  roll,  with  a  warrant  annexed,  authorizing  such 


MICHIGAN.  327 

Treasurer  to  collect  such  taxes  on  or  before  the  first  day  of 
the  ensuing  February. 

The  Treasurer  of  each  township,  upon  receiving  the  tax 
list  and  warrant,  is  required  to  proceed  to  collect  the  taxes 
therein  mentioned,  and  for  that  purpose  to  call  at  least 
once  on  the  person  taxed,  if  a  resident,  or  at  the  place  of  his 
usual  residence  in  the  township,  and  demand  payment  of 
the  taxes  charged  to  him ;  and  no  property,  liable  to  be 
taxed,  shall  be  exempt  from  levy  and  sale  in  tin?  collection 
thereof.  In  case  any  person  shall  refuse  or  neglect  to  pay 
the  tax  imposed  on  him,  the  same  is  required  to  be  levied 
by  distress,  on  his  goods  and  chattels,  wheresoever  found  in 
the  township;  but  if  the  same  be  not  collected,  and  the 
Treasurer  shall  not  be  able  to  collect  them,  he  can  only  re- 
turn the  fact  to  the  County  Treasurer,  on  ilio  first  day  of 
February,  who  is  authorized  to  credit  him  then  mount  of  the 
tax.  By  an  act  passed  in  1843,  and  another  anu-nding  it  in 
1844,  it  is  provided  that,  whenever  any  County  Treasurer 
shall  receive,  from  a  Township  Treasurer,  a  certified  state- 
ment of  unpaid  taxes  on  the  lands  of  residents,  or  non- 
residents, such  County  Treasurer  shall  enter  the  same  in  full 
on  the  books  provided  for  that  purpose,  in  his  office  ;  and  af- 
ter making  a  transcript  thereof,  which  shall  be  compared 
with  the  Township  Treasurer's  statement,  by  the  County 
Clerk,  who  shall  certify  such  examination  and  comparison 
the  same,  shall  be  forwarded  to  the  Auditor. 

Before  the  expiration  of  the  month  of  March  ensuing,  such 
transcript  is  required  to  be  forwarded  to  the  Auditor  General, 
at  Detroit.  The  Act  of  1843  provides,  "that  any  person 
may  pay  the  taxes  on  lands  returned  as  aforesaid,  by  paying 
the  amount  of  the  tax,  and  the  five  per  cent  specified  in  the 
preceding  section,  with  interest,  calculated  thereon  from  the 
first  day  of  February,  at  the  rate  of  fifteen  per  cent  per  an- 
num, and  the  office  charges  hereinafter  specified,  to  the 
several  County  Treasurers,  in  which  the  lands  are  situated, 
at  anytime  before  they  are  sold  for  taxes  or  to  the  State 


328 


FORFEITURES  AND  REDEMPTIONS  IN 


Treasurer,  on  the  certificate  of  the  Auditor  General,  until  the 
first  day  of  September  following  the  return."  [Id.,  Sec.  50.] 

The  office  charges  referred  to  in  the  foregoing  section,  are 
twenty-five  cents  on  the  first  description,  and  six  cents  on 
every  one  above  that  number.  [Id.,  Sec.  5r.] 

In  cases  of  delinquency  it  is  further  provided,  that  "all 
lands  returned  to  the  Auditor  General  delinquent  as  afore- 
said, upon  which  the  taxes,  interest,  and  charges,  shall  not 
be  paid,  as  hereinbefore  provided,  by  the  first  day  of  Septem- 
ber succeeding  their  return,  or  be  charged  back  to  the  proper 
county,  shall  be  subject  to  sale  and  redemption,  as  hereinaf- 
ter provided."  [Id.,  Sec.  56.] 

XIV.  LAND  TAX  FORFEITURES  AND  REDEMPTIONS  IN 
MICHIGAN. 

By  land  tax  forfeitures  is  meant,  of  course,  the  consequen- 
ces of  neglect  in  the  payment  of  taxes.  The  preceding  topic 
has  carried  the  reader  hastily  through  the  mode  adopted  by 
the  people  of  Michigan  to  levy  arid  collect  their  revenue, 
and  it  remains  only  to  give  a  summary  of  those  provisions 
which  draw  from  the  owner  the  land  itself,  or  a  portion  of  it, 
as  the  penalty  for  his  neglect. 

Formerly  lands  were  required  to  be  sold  by  the  County 
Treasurers  respectively,  on  the  first  Monday  of  October 
next  after  they  were  returned  as  delinquent  to  the  Auditor 
General,  and  two  years  after  sale  were  allowed  for  redeeming 
them ;  but  by  an  act  passed  in  1845,  it  was  provided  that 
lands  returned,  "on  which  the  taxes,  interest  arid  charges 
shall  remain  unpaid  for  one  year  succeeding  their  return, 
shall  be  advertised  and  sold  in  such  manner  as  is  now  or 
may  hereafter  be  provided  by  law :  provided,  that  no  lands 
bid  in  by  the  State  for  taxes  of  any  previous  year,  and  remain- 
ing unredeemed,  shall  be  advertised  and  sold  as  other  lands, 
but  shall  be  subject  to  sale  as  hereinafter  provided." 

The  sale  is  required  by  statute  to  be  under  the  direction  of 
the  Auditor  General,  after  a  published  notice  thereof,  and  so 


MICHIGAN.  329 

much  only  of  each  parcel  taxed  to  be  sold  from  the  northeast 
corner  thereof,  in  a  square  form,  as  shall  be  sufficient  to  pay 
the  taxes,  interest  and  charges. 

Discretionary  power  is  vested  in  the  County  Treasurer  to 
demand  immediate  payment  of  the  bids,  or  to  give  a  reason- 
able day  of  payment,  and  in  all  cases  where  payment  is  not 
made  in  twenty-four  hours,  he  may  declare  the  bid  canceled, 
and  at  his  discretion  sell  the  lands  again ;  "  and  any  person 
so  neglecting-  or  refusing  to  pay  any  bid,  shall  not  be  entitled 
after  such  neglect  to  have  his  bid  received  by  the  Treasurer." 
[Sess.  Laws,  1843.] 

It  is  further  provided  that  "the  several  County  Treasurers 
shall  receive  only  such  funds  as  shall  at  the  time  be  receiva- 
ble by  law  at  the  State  Treasury,  on  account  of  the  general 
and  delinquent  tax  funds,  and  so  much  as  may  be  necessary 
to  pay  for  printing,  and  sale  charges,  shall  be  paid  in  specie 
or  its  equivalent."  [Id.,  Sec.  63.] 

"  At  the  sales  aforesaid,  the  respective  County  Treasurers 
shall  give  the  purchasers,  on  the  payment  of  their  bids,  a 
certificate  in  writing  describing  the  lands  purchased,  and  the 
amount  paid  therefor,  and  shall  endorse  thereon,  the  kind  of 
funds  received  ;  and  such  certificates  shall  be  regularly  num- 
bered, and  a  copy  thereof  forwarded  to  the  Auditor  General 
in  such  manner  as  he  shall  direct."  [Id.,  Sec.  64.] 

"On  the  presentation  of  such  certificate  of  sale  to  the 
Auditor  General,  after  the  expiration  of  the  time  hereinafter 
provided  for  the  redemption  of  lands  sold,  as  aforesaid, 
he  shall  execute  to  the  purchaser,  his  heirs  or  assigns,  a  deed 
of  the  land  therein  described,  unless  the  Auditor  General 
shall  have  discovered  that  the  same  was  improperly  sold ; 
which  deed  shall  be  prima  facie  evidence  of  the  regularity  of 
all  the  proceedings  to  the  date  of  the  deed ;  but  such  lands 
shall  be  subject  to  all  unpaid  taxes  properly  chargeable  there- 
on." [Id.,  Sec.  15.] 

If  any  individual  shall  become  the  purchaser  on  such 
14* 


330  FORFEITURES  AND  REDEMPTIONS  IN 

sale,  any  person  claiming  the  lands  sold,  or  any  interest 
therein,  may  redeem  the  same  within  one  year  after  the  sale, 
and  not  afterwards,  by  paying  into  the  State  Treasury  the 
amount  for  which  such  parcel  was  sold,  with  interest  thereon 
at  the  rate  of  twenty-five  per  cent  per  annum — twenty 
of  which  shall  be  paid  by  the  State  to  the  purchaser,  and 
five  per  cent  retained  to  meet  incidental  expenses :  provided, 
that  if-redeemed  within  three  months  after  sale,  three  months 
interest  shall  be  charged ;  if  after  three  and  within  six 
months,  then  six  months  interest ;  if  after  six  and  within 
nine  months,  then  nine  months  interest;  and  if  after  nine 
months  and  within  one  year,  then  one  year's  interest  shall 
be  charged  at  the  rate  prescribed.  [Sess.  Laws,  1845,  Sec. 
2.] 

But  when  land,  at  tax  sales,  is  not  purchased  by  individu- 
als, it  is  brought  in  by  the  State.  Until  such  lands  shall  be 
sold  by  the  State  as  hereinafter  mentioned,  the  same  may  be 
redeemed  at  the  amount  of  the  bid  and  twenty-five  per  cent 
interest  to  the  day  of  redemption  ;  but  in  such  case,  the  per- 
son applying  to  redeem  is  also  required  to  pay  or  cause  to 
be  paid  at  the  time  of  such  application,  all  taxes,  interest 
and  charges  that  shall  remain  unpaid  on  said  lands,  in  the 
Auditor  General's  office  at  the  time  of  such  application,  and 
not  otherwise. 

It  is  further  provided  that  the  title  acquired  by  such  re- 
demption shall  have  the  effect  only  of  releasing  the  lien  or 
title  of  the  State  arising  from  the  forfeiture,  and  nothing 
more.  [Id.,  Sec.  4.] 

After  the  expiration  of  one  year  from  the  day  of  sale  and 
purchase  by  the  State,  as  aforesaid,  such  lands  as  shall  not 
have  been  redeemed,  may  be  again  advertised  to  be  sold  on 
the  first  Monday  of  the  ensuing  October,  by  the  respective 
County  Treasurers  ;  and  on  that  day  the  same  may  be  again 
offered  for  sale,  and  upon  receiving  payment  of  the  bid, 
which  shall  be  not  less  than  the  minimum  fixed  in  the  no- 


MICHIGAN.  331 

tice,  a  certificate  may  be  issued  to  the  purchaser,  which  on 
presentation  to  the  Auditor  General  entitles  him  to  a  deed. 

Such  deed  will  convey  all  the  right  acquired  by  the  State 
under  the  original  sale  or  sales  to  the  State,  subject  to  all 
taxes  duly  assessed  thereon ;  and  which  deed  is  held  to 
be  prima  facie  evidence  of  the  correctness  of  all  the  proceed- 
ings to  its  date,  and  when  duly  acknowledged  may  be  record- 
ed and  admitted  as  evidence  in  courts  of  justice.  [Id.,  Sec. 
5,  6,  7,  8.] 

It  is  further  provided  that  purchasers  of  tax  sales  may  at 
their  option  pay  to  the  State  Treasurer  on  the  certificate  of 
the  Auditor  General,  the  amount  that  may  be  due  the  State 
on  the  lands  they  may  severally  purchase,  that  may  have 
been  bid  in  for  taxes,  by  the  State,  of  any  year,  and  acquire 
all  the  rights  of  the  State  thereto  if  not  redeemed,  and  to  the 
redemption  money,  if  redeemed,  the  same  as  though  they, 
instead  of  the  State,  had  been  the  original  purchasers.  [Id., 
Sec.  9.] 

On  applying  to  the  Auditor  General  for  a  deed  upon  a 
Treasurer's  certificate,  the  purchaser  is  required  to  pay  an 
officer  a  charge  of  twenty-five  cents  for  the  first,  and  six 
cents  for  each  subsequent  description  contained  in  each  deed, 
which  money  the  Auditor  General  is  required  to  pay  into 
the  Treasury  of  the  State. 

XV.     LIMITATION    OF  REAL  ACTIONS    IN    MICHIGAN.* 

Statutes  of  limitations,  although  sometimes  mischievous 
in  their  effects,  have  been  enacted  in  every  State  in  the 
Union.  They  are  usually  termed  statutes  of  repose.  The 

*  The  limitation  upon  actions  upon  all  debts,  contracts,  or  liability  not  under  seal, 
except  judgments  and  decrees  in  Courts  of  Record,  for  arrears  of  rent,  assumpsit, 
replevin  and  trover,  is  six  years ;  upon  actions  for  trespass  on  land,  for  false  im- 
prisonment, slander  and  libels,  two  years  ;  against  Sheriffs  for  misconduct  or  neg- 
lect, four  years  ;  upon  any  statute  for  penalties  or  forfeitures,  one  year ;  and  upon 
all  other  personal  actions,  twenty  years.  [R.  S.  of  Michigan,  577.] 


332  LIMITATIONS  IN 

stipulated  years  which  bar  a  recovery,  admonish  all  claim- 
ants of  land  to  diligence,  that  they  may  recover  that  which 
is  justly  theirs,  before  invasions  into  the  ranks  of  mortality 
have  destroyed  the  witnesses.  On  the  other  hand,  their 
lapse  assures  occupants  of  land  that  their  title  has  become 
settled,  and  that  all  cause  for  anxiety  in  that  behalf  is  effectu- 
ally removed. 

By  an  act  passed  in  1842,  it  was  provided  "  that  all  suits 
in  ejectment  hereafter  instituted  to  recover  any  lands  or  tene- 
ments by  any  person  claiming  title  under,  through  or  by  vir- 
tue of  any  deed  or  conveyance,  executed  or  hereafter  to  be 
executed  by  any  Treasurer  of  any  of  the  counties  of  this 
State,  or  of  the  Auditor  General,  on  account  of  any  sale  for  the 
non-payment  of  any  taxes  hereafter  assessed,  or  hereafter  to 
be  assessed,  upon  such  lands  and  tenements,  the  said  suit  in 
ejectment  shall  be  commenced  within  six  years  from  the  date 
of  such  deed  or  conveyance,  and  not  thereafter."  [Sess. 
Laws,  1842,  133,  Sec.  1.] 

"Whenever  any  person  claiming  title  under,  through,  or 
by  virtue  of  any  such  deed  or  conveyance,  shall  have  enter- 
ed, or  shall  enter  into  the  actual  possession,  and  occupy  the 
said  lands  and  tenements  described  in  such  deed,  any  suit  in 
ejectment  to  recover  said  lands  and  tenements,  instituted  by 
any  person  claiming  title  through  any  other  source,  shall  be 
commenced  within  ten  years  from  the  time  of  so  taking  the 
actual  possession  as  aforesaid,  and  not  thereafter."  [Id.,  Sec. 

a.j 

Actions  for  the  recovery  of  dower  and  all  other  actions  for 
the  recovery  of  real  estate,  are  required  to  be  brought  within 
twenty  years  after  the  accruing  of  the  right. 

XVI.    REAL    ESTATE    EXEMPTIONS    IN    MICHIGAN. 

It  has  been  observed  that  exemption  laws  were  the  result 
of  wise  legislation,  and  answered  the  double  purpose  of  in- 
ducing frugal  providence,  and  of  arresting  the  hand  of  un- 


MICHIGAN.  333 

feeling  creditors.  It  is  neither  advantageous  to  creditors  in 
general,  nor  to  community  at  large,  to  permit  the  fireside  of 
the  debtor  to  be  desolated,  nor  his  wife  and  children  to  be  dis- 
tressed by  executions;  for  the  industrial  energies  of  men  are 
thereby  repressed,  and  their  inclination  to  pay  honest  dues 
thereby  repelled. 

Although  a  liberal  exemption  of  personal  property  has 
been  made  to  debtors  in  Michigan,  no  real  estate  nor  proper- 
ty of  the  nature  of  real  estate,  except  a  pew  in  a  church  or 
place  of  public  worship,  and  burial  places  in  use  as  reposito- 
ries of  the  dead,  is  protected  from  levy  and  sale  upon  execu- 
tion.* 

*  By  an  act  passed  in  lu  lv!,  it  i*  provided  that  the  household  and  kitchen  furniture 
of  each  householder,  not  exceeding  in  value  two  hundred  and  fifty  dollars  ;  the 
wearing  apparel  of  every  person  and  family;  the  library  of  every  individual  and 
family,  not  exceeding  in  value  one  hundred  and  fifty  dollars;  the  types  presses  and 
other  materials  of  every  printing  office,  not  exceeding  one  hundred  and  fifty  dollars 
in  value;  the  tools,  implements  and  stock  necessary  to  enable  every  mechanic  to 
earryon  his  business,  not  r\eoediug  in  value  one  hundred  and  fifty  dollars ;  fill 
spinning  wheels  and  weaving  looms,  with  their  apparatus  used  in  families;  the 
pewi  and  slips  and  ss-ats  i:i  «^<TY  place  of  public  worship;  all  public  cemeteries ; 
all  rights  of  burial  nnd  tomb-,  while  in  use  as  repositories  of  the  dead;  one  fishing 
skiff,  or  boat,  seine,  nets,  or  other  necessary  apparatus,  to  every  person  whoso 
principal  occupation  or  business  is  fishing,  nor  exceeding  in  value  sixty  dol- 
lars; all  arms  and  military  equipage  for  man  and  horse ;  two  cows,  ten  sheep,  with 
tiie  wool  and  cloth  manufactured  from  the  same,  and  five  hoirs  to  each  household- 
•  r  ;  to  each  practical  fanner  one  yoke  of  cattle,  with  yoke  and  chains,  or  one  pair 
of  horses  und  harness,  not  exceeding  in  value  eighty  dollars,  one  plough,  one  har- 
row, one  wagon  or  cart,  with  all  other  necessary  implements  of  husbandly,  which 
other  implements  shall  not  exceed  twenty-five  dollars  in  value  ;  one  yoke  of  cattle, 
with  yoke,  cart  or  wagon  and  chains  for  ever)'  lumberman;  one  horse  and  harness, 
and  one  dray  to  every  dravman. 

To  every  practicing  physician,  one  horse,  bridle,  saddle,  surgical  instruments, 
nnd  medicines,  not  exceeding  in  value  one  hundred  dollars  ;  a  sufficient  quantity  of 
hay,  grain,  feed  and  roots,  for  sustaining  and  keeping  the  live  stock  hereinbefore 
severally  allowed  to  each  class  of  persons  for  six  months,  and  the  requisite  pro- 
visions and  food  for  the  comfortable  subsistence  of  every  family  and  housekeeper, 
for  six  months ;  shall  be,  and  the  same  are  exempted  from  execution  or  sale,  for 
any  debt,  damages,  fine  or  amercement  whatever,  except  upon  a  judgment  for  the 
purchase  money  thereof.  [Sess.  Laws,  1342,  70.] 


334  INTEREST  OF  MONEY  AND  USURY  IN  MICHIGAN. 

XVII.    THE  INTEREST  OF  MONEY  IN  MICHIGAN. 

There  exists  much  diversity  of  sentiment  concerning  the 
interest  of  money.  In  some  quarters  the  money  lender  is 
regarded  as  an  usurer,  and  thought  undeserving  of  favor, 
whilst  in  others  he  is  esteemed  a  valuable  member  of  com- 
munity. Commensurate  with  the  extremity  of  either  senti- 
ment in  a  State,  is  the  rigor  or  liberality  of  the  laws  concern- 
ing interest.  In  Michigan  seven  per  centum  per  annum  is 
allowed  by  law,  and  collectable  on  all  notes,  bills,  bonds,  de- 
mands and  accounts  where  interest  is  chargeable.  It  is  fur- 
ther provided  that  in  cases  of  money  loaned  it  shall  be  law- 
ful for  the  parties  to  stipulate  in  writing  for  the  payment  of 
any  interest  not  exceeding  ten  per  cent.  Interest  is  allow- 
able upon  all  judgments  at  law,  decrees  in  chancery,  and 
every  verdict,  award,  assessment,  and  liquidated  demand. 
[R.  S.,  160.] 

XVIII.  THE  PENALTY  AND  FORFEITURE  OF  USURY  IN 
MICHIGAN. 

The  statute  provides  that  "  the  interest  of  money  shall 
continue  to  be  at  the  rate  of  seven  dollars,  and  no  more,  upon 
one  hundred  dollars  for  a  year,  and  at  the  same  rate  for  a 
greater  or  less  sum,  and  for  a  longer  or  shorter  time:  pro- 
vided, that  in  cases  of  money  loaned,  it  shall  be  lawful  for 
the  parties  to  stipulate  in  writing  for  the  payment  of  any  in- 
terest not  exceeding  ten  per  cent  per  annum."  [R.  S.,  Sec. 
160.] 

"  In  actions  brought  on  any  usurious  contract  or  assurance, 
if  it  appear  upon  a  special  plea  to  that  effect,  that  a  greater 
rate  of  interest  has  been  directly  or  indirectly  reserved,  taken 
or  received,  than  is  allowed  by  law,  the  plaintiff  can  have 
judgment  for  the  principal  and  legal  interest  only."  [Act  of 
1843,  Sec.  2.] 


WISCONSIN.  335 


CHAPTER  VI, 


THE  STATE  OF  WISCONSIN. 

Source  of  Title  to  Lands  in  the  State.  Native  Proprietors  thereof.  Exploration 
of  the  country,  and  settlement  by  the  French  at  La  Point  and  Given  Bay.  Sur- 
render thereof  to  Great  Britain.  The  Quebec  Act.  The  Charter  of  Virginia. 
Her  Claim  and  Cession  to  the  General  Government.  Wisconsin  a  portion  of 
thr  Northwestern  Territory.  Wns  set  off  with  Indiana  and  subsequently  with 
Illinois.  Was  attached  to  Michigan.  Erection  of  the  Wisconsin  Territory.  Act 
of  Congress  for  the  admission  of  Wisconsin  into  the  Union.  Her  Constitution. 
Land  Titles  generally.  The  Execution,  Attestation,  Proof.  Acknowledgment 
Authentication,  and  Recording  of  Deeds  and  Mortgages.  The  Execution, 
Attestation,  Probate  and  Recording  of  Will?  of  Real  Estate.  Descent  of  Real 
Estate.  Land  Taxes.  Forfeitures  and  Redemptions.  Limitations.  Exemp- 
tions. Interest  of  Money,  and  Usury. 

I.     SOURCE  OF  TITLE  TO  LANDS    IN    THE   STATE NATIVE 

PROPRIETORS    THEREOF,  &C. 

WISCONSIN  is  the  fifth  and  last  State  erected  from  "the  ter- 
ritory of  the  United  States,  northwest  of  the  Ohio,"  and  is  a 
portion  of  that  vast  domain  to  which  France  asserted  the 
pre-emption  by  reason  of  her  exploration  and  partial  set- 
tlement thereof,  in  the  seventeenth  century.  [Ante  129.] 

The  colonization  of  Canada  and  Acadia,  by  the  French, 
was  a  movement  cotemporaneous  with  the  settlement  of 
New- York,  by  the  Dutch.  Upon  the  discovery  of  the  Ameri- 
can continent,  the  nations  of  Europe  became  emulous  of  each 
other,  and  alike  eager  to  appropriate  to  themselves  so  much 
of  it  as  they  could  respectively  acquire.  Its  vast  extent 
opened  an  ample  field  to  ambitious  enterprise,  whilst  the  con- 


336  SOURCE  OF  TITLE  TO  LANDS  IN 

dition  and  character  of  the  native  proprietors  afforded  an 
apology  for  claiming  to  exercise  over  them,  the  ascendancy 
of  superior  genius. 

Although  the  natives  had  maintained  a  continued  posses- 
sion of  the  country  from  a  remote  period,  under  the  firm  be- 
lief that  the  Great  Spirit  designed  it  for  their  especial  and  ex- 
clusive use,  the  potentates  of  the  old  world  readily  convinced 
themselves  that  the  civilization  and  Christianity  which  they 
sent  to  them  by  their  missionaries,  were  adequate  and  ample 
recompense  for  the  Indian's  hunting  grounds,  and  his  un- 
limited independence;  and  as  all  were  in  pursuit  of  territo- 
rial wealth  and  aggrandizement,  it  became  necessary  to  es- 
tablish a  principle  by  which  the  rights  of  each  might  be  reg- 
ulated. That  principle  was,  "  that  discovery  gave  title  to 
the  government  by  whose  subjects  or  by  whose  authority  it 
was  made,  against  all  other  European  governments,  which 
title  might  be  consummated  by  possession." 

France  claimed  the  northwestern  territory,  as  she  did  the 
Canadas,  on  the  ground  of  discovery,  and  claiming  thus,  she 
claimed  the  exclusive  right  of  acquiring  the  soil  of  the  na- 
tives, and  of  making  settlements  upon  it,  as  a  concomitant. 
Whilst  the  Indians  were  denied  the  capacity  to  be,  or  to  be- 
come, vested  with  a  title  to  the  soil,  they  were  admitted  to  be 
rightful  occupants  thereof,  and  to  use  it  at  discretion,  during 
their  own  pleasure. 

Prance  claimed  that  the  discovery  and  partial  settlement 
of  Wisconsin  made  for  her  a  valid  title  thereto,  subject  only 
to  the  Indian  right  of  occupancy.  Her  monarch  claimed  it 
as  an  appendage  to  Canada  and  Acadia,  over  which  he  held 
undisputed  regal  sway,  as  well  as  Louisiana,  and  the  im- 
mense territories  watered  by  the  Mississippi  and  the  rivers 
emptying  therein. 

Although  Wisconsin  was  nominally  occupied  by  the 
French,  their  earliest  settlements  in  the  territory  were  made 
at  points  without  the  borders  of  the  State.  The  first  settle'- 


WISCONSIN.  337 

ment  in  Wisconsin  was  made  at  La  Point,  in  1666,  and  the 
second  at  Green  Bay,  in  1670,  being  the  same  year  that 
Nicholas  Perrot  visited  the  Miami  settlement  at  Chicago. 
[Ante  238.] 

At  that  time  the  territory  was  occupied  chiefly  by  the 
Winriebagoes,  Foxes,  Pottawatamies,  Miamis,  Mascoutins, 
and  Kickapoos. 

Wisconsin  remained  in  the  possession  of  the  French,  until 
1763,  when  it  was  surrendered  to  Great  Britain,  and  became 
a  part  of  the  colonial  possessions  of  that  government.  Un- 
der the  letters  patent  theretofore  granted  to  the  colony  of  Vir- 
ginia, by  Great  Britain,  (Ante  140,)  the  English  settlers  in 
1750,  became  jealous  of  the  movements  of  the  French,  in  the 
region  of  the  Lakes,  the  Wabash  and  the  Mississippi,  and 
remonstrated  against  any  further  encroachments  by  the  lat- 
ter upon  the  territory  embraced  within  their  chartered  limits. 
Whereupon  the  Algonquins  and  Hurons  became  the  allies  of 
France,  and  the  Iroquois  of  the  English,  and  at  once  engag- 
ed in  a  war  that  ultimated  in  determining  the  jurisdiction  of 
France  over  the  territory  northwest  of  the  Ohio.  [Ante  132.] 

In  1774  the  Quebec  Act  was  passed,  by  which  the  Ohio 
river  was  established  as  the  southern  boundary  of  Canada. 
It  also  extended  peace  and  the  protection  of  the  government 
to  all  Catholic  inhabitants  residing  in  the  territory.  After 
exercising  jurisdiction  over  the  country  for  twenty  years,  Great 
Britain  relinquished  it  to  the  United  States  in  1783,  under 
the  treaty  cited  ante  59. 

It  has  been  intimated  that  the  early  settlers  of  Virginia, 
claimed  that  Wisconsin  was  embraced  within  the  charter  of 
that  colony.  Whether  it  were  so  or  not  is  unimportant,  since 
that  colony  upon  becoming  a  State  ceded  all  right,  title  and 
interest  over  it  to  the  General  Government.  [Ante  140.] 

Virginia,  however,  (51  aims  the  full  credit  of  having  owned 
and  relinquished  the  entire  domain,  as  well  as  that  of  Indi- 
ana and  Illinois  in  her  deed  of  cession. 
15 


338  TERRITORY  OF 

Until  the  year  1800,  Wisconsin  remained  under  the  terri- 
torial government  of  Ohio.  In  that  year  she  was  attached 
to  the  Indiana  territory,  and  so  remained  until  1809,  when 
she  was  set  pff  with  Illinois  into  a  territory  called  the  Illinois 
Territory.  Upon  the  admission  of  that  State  into  the  Union, 
Wisconsin  was  attached  to  Michigan  and  so  remained  until 
the  passage  of  the  following  act  of  Congress* : 

II.  ERECTION  OF  THE  TERRITORY  OF  WISCONSIN  BY  AN 
ACT  ENTITLED  "  AN  ACT  ESTABLISHING  THE  TERRITORY 
OF  WISCONSIN."  APPROVED  APRIL  20,  1846. 

"  Section  I.  Be  it  enacted  by  the  Senate  and  House  of  Rep- 
resentatives of  the  United  States  of  America  in  Congress 
assembled,  That  from  and  after  the  third  day  of  July  next, 
the  country  included  within  the  following  boundaries  shall 
constitute  a  separate  territory,  for  the  purposes  of  temporary 
government,  by  the  name  of  Wisconsin  ;  that  is  to  say : 
bounded  on  the  east,  by  a  line  drawn  from  the  northeast  cor- 
ner of  the  State  of  Illinois,  through  the  middle  of  Lake 
Michigan,  to  a  point  in  the  middle  of  said  lake,  and  oppo- 
site the  main  channel  of  Green  Bay,  and  through  said 
channel  and  Green  Bay,  to  the  mouth  of  the  Menomonie 
river;  thence  through  the  middle  of  the  main  channel 
of  the  said  river,  to  that  head  of  said  river  nearest  to  the 
Lake  of  the  Desert ;  thence  in  a  direct  line  to  the  middle  of 
said  lake ;  thence  through  the  middle  of  the  main  channel 
of  the  Montreal  river,  to  its  mouth ;  thence  with  a  direct  line 

*Lapham  in  his  geography  and  topography  of  Wisconsin,  remarks  "  that  within 
the  space  of  one  hundred  and  sixty-six  years,  Wisconsin  has  been  successively  ruled 
by  two  kings,  one  State  and  four  Territories,  and  we  have  finally  set  up  for  our- 
selves, without  any  great  and  exciting  events  to  produce  these  revolutions.  The 
people  have  submitted  to  each  change  without  a  struggle  or  a  murmur.  They  have 
been  under  the  government  of  France  from  1670,  to  1763,  or  93  years  ;  of  Great 
Britain  from  1763  to  1794,  or  31  years ;  of  Virginia  and  Ohio  from  1794  to  1800, 
or  6  years;  of  Indiana  from  1800  to  1809,  or  9  years;  of  Illinois  from  1809  to 
1313,  or  9  years ;  and  of  Michigan  from  18 18  to  1836,  or  13  years."  To  that  may 
be  added  that  it  remained  a  Territory  10  years,  and  then  took  a  place  in  the  Union 
as  one  of  the  United  and  Confederated  States. 


WISCONSIN.  339 

across  Lake  Superior,  to  where  the  territorial  line  of  the 
United  States  last  touches  said  lake  northwest ;  thence  on 
the  north,  with  the  said  territorial  line,  to  the  White-earth 
river ;  on  the  west,  by  a  line  from  the  said  boundary  line  fol- 
lowing down  the  middle  of  the  main  channel  of  White-earth 
river,  to  the  Missouri  river,  and  down  the  middle  of  the 
main  channel  of  the  Missouri  river,  to  a  point  due  west  from 
the  northwest  corner  of  the  State  of  Missouri ;  and  on  the 
south,  from  said  point,  due  east  to  the  northwest  corner  of 
the  State  of  Missouri ;  and  thence  with  the  boundaries  of 
the  States  of  Missouri  and  Illinois,  as  already  fixed  by  acts 
of  Congress.  And  after  the  said  third  day  of  July  next,  all 
power  and  authority  of  the  government  of  Michigan  in  and 
over  the  Territory  hereby  constituted,  shall  cease :  provided, 
that  nothing  in  this  act  contained  shall  be  construed  to  im- 
pair the  rights  of  person  or  property  now  appertaining  to  an^i 
Indians  within  the  said  territory,  so  long  as  such  rights  shall 
remain  nnextinguished  by  treaty  between  the  United  States 
and  such  Indians,  or  to  impair  the  obligations  of  any  treaty 
now  existing  between  the  United  States  and  such  Indians,  or 
to  impair  or  anywise  to  affect  the  authority  of  the  govern- 
ment of  the  United  States  to  make  any  regulations  respect- 
ing such  Indians,  their  lands,  property,  or  other  rights,  by 
treaty,  or  law,  or  otherwise,  which  it  would  have  been  com- 
petent to  the  Government  to  make  if  this  act  had  never  been 
passed :  Provided,  that  nothing  in  this  act  contained  shall 
be  construed  to  inhibit  the  Government  of  the  United  States 
from  dividing  the  Territory  hereby  established  into  one  or 
more  other  Territories,  in  such  manner,  and  at  such  times, 
as  Congress  shall,  in  its  discretion,  deem  convenient  and 
proper,  or  from  attaching  any  portion  of  said  Territory  to  any 
other  State  or  Territory  of  the  United  States. 

"  Sec.  II.  And  be  it  further  enacted,  that  the  Executive 
power  and  authority  in  and  over  the  said  Territory  shall  be 
vested  in  a  Governor,  who  shall  hold  his  office  for  three 


340  TERRITORY  OF 

years,  unless  sooner  removed  by  the  President  of  the  United 
States.  The  Governor  shall  reside  within  the  said  Territory, 
shall  be  commander-in-chief  of  the  militia  thereof,  shall  per- 
form the  duties  and  receive  the  emoluments  of  superintend- 
ent of  Indian  affairs,  and  shall  approve  of  all  laws  passed  by 
the  Legislative  Assembly  before  they  shall  take  effect ;  he 
may  grant  pardons  for  offences  against  the  laws  of  the  said 
Territory,  and  reprieves  for  offences  against  the  laws  of  the 
United  States,  until  the  decision  of  the  President  can  be  made 
known  thereon  ;  he  shall  commission  all  officers  who  shall 
be  appointed  to  office  under  the  laws  of  the  said  Territory  ? 
and  shall  take  care  that  the  laws  be  faithfully  executed. 

"Sec.  III.  And  be  it  further  enacted,  That  there  shall  be  a 
Secretary  of  the  said  Territory,  who  shall  reside  therein,  and 
hold  his  office  for  four  years,  unless  sooner  removed  by  the 
President  of  the  United  States  ;  he  shall  record  and  preserve 
all  the  laws  and  proceedings  of  the  Legislative  Assembly 
hereinafter  constituted,  and  all  the  acts  and  proceedings  of 
the  Governor  in  his  executive  department ;  he  shall  transmit 
one  copy  of  the  laws  and  one  copy  of  the  Executive  proceed- 
ings on  or  before  the  first  Monday  in  December  in  each  year, 
to  the  President  of  the  United  States ;  and  at  the  same  time, 
two  copies  of  the  laws  to  the  Speaker  of  the  House  of  Repre- 
sentatives, for  the  use  of  Congress.  And  in  case  of  the  death, 
removal,  resignation,  or  necessary  absence,  of  the  Governor 
from  the  Territory,  the  Secretary  shall  have,  and  he  is  here- 
by authorized  and  required  to  execute  and  perform,  all  the 
powers  and  duties  of  the  Governor  during  such  vacancy  or 
necessary  absence. 

"  Sec.  IV.  And  be  it  further  enacted.  That  the  Legislative 
power  shall  be  vested  in  a  Governor  and  a  Legislative  Assem- 
bly. The  Legislative  Assembly  shall  consist  of  a  Council 
and  House  of  Representatives.  The  Council  shall  consist  of 
thirteen  members,  having  the  qualifications  of  voters  as  here- 
inafter prescribed,  whose  term  of  service  shall  continue  four 


WISCONSIN.  341 

years.  The  House  of  Representatives  shall  consist  of  twenty- 
six  members,  possessing  the  same  qualifications  as  prescribed 
for  the  members  of  the  Council,  and  whose  term  of  service 
shall  continue  two  years.  An  appointment  shall  be  made, 
as  nearly  equal  as  practicable,  among  the  several  counties, 
for  the  election  of  the  Council  and  Representatives,  giving  to 
each  section  of  the  Territory  representation  in  the  ratio  of  its 
population,  Indians  excepted,  as  nearly  as  maybe.  And  the 
said  members  of  the  Council  and  House  of  Representatives 
shall  reside  in  and  be  inhabitants  of  the  district  for  which 
they  may  be  elected.  I3revious  to  the  first  election,  the  Gov- 
ernor of  the  Territory  shall  cause  the  census  or  enumeration 
of  the  inhabitants  of  the  several  counties  in  the  Territory  to 
be  taken  and  made  by  the  Sheriffs  of  the  said  counties,  re- 
spectively, and  returns  thereof  made  by  said  Sheriffs  to  the 
Governor.  The  first  election  shall  be  held  at  such  time  and 
place,  and  be  conducted  in  such  manner,  as  the  Governor 
shall  appoint  and  direct :  and  he  shall,  at  the  same  time,  de- 
clare the  number  of  members  of  the  Council  and  House  of 
Representatives  to  which  each  of  the  counties  is  entitled  un- 
der this  act.  The  number  of  persons  authorized  to  be  elected 
having  the  greatest  number  of  votes  in  each  of  the  said  coun- 
ties for  the  Council,  shall  be  declared,  by  the  said  Governor, 
to  be  duly  elected  to  the  said  Council ;  and  the  person  or 
persons  having  the  greatest  number  of  votes  for  the  House 
of  Representatives,  equal  to  the  number  to  which  each  county 
may  be  entitled,  shall  also  be  declared,  by  the  Governor,  to 
be  duly  elected :  Provided  the  Governor  shall  order  a  new 
election  when  there  is  a  tie  between  two  or  more  persons  vo- 
ted for,  to  supply  the  vacancy  made  by  such  tie.  And  the 
persons  thus  elected  to  the  Legislative  Assembly  shall  meet 
at  such  place  on  such  day  as  he  shall  appoint ;  but,  there- 
after, the  time,  place,  and  manner  of  holding  and  conducting 
all  elections  by  the  people,  and  the  apportioning  the  repre- 
sentation in  the  several  counties  to  the  Council  and  House 


342  TERRITORY  OF 

of  Representatives,  according  to  population,  shall  be  pre- 
scribed by  law,  as  well  as  the  day  of  the  annual  commence- 
ment of  the  session  of  the  said  Legislative  Assembly ;  but 
no  session,  in  any  year,  shall  exceed  the  term  of  seventy-five 
days. 

"  Sec.  V.  And  be  it  further  enacted,  That  every  free  white 
male  citizen  of  the  United  States,  above  the  age  of  twenty- 
one  years,  who  shall  have  been  an  inhabitant  of  said  Terri- 
tory at  the  time  of  its  organization,  shall  be  entitled  to  vote 
at  the  first  election,  and  shall  be  eligible  to  any  office  within 
the  said  Territory ;  but  the  qualifications  of  voters  at  all  sub- 
sequent elections  shall  be  such  as  shall  be  determined  by  the 
Legislative  Assembly:  Provided  that  the  right  of  suffrage 
shall  be  exercised  only  by  citizens  of  the  United  States. 

"  Sec.  VI.  And  be  it  further  enacted,  That  the  Legislative 
power  of  the  Territory  shall  extend  to  all  rightful  subjects  of 
legislation ;  but  no  law  shall  be  passed  interfering  with  the 
primary  disposal  of  the  soil ;  no  tax  shall  be  imposed  upon 
the  property  of  the  United  States ;  nor  shall  the  lands  or 
other  property  of  non-residents  be  taxed  higher  than  the  lands 
or  other  property  of  residents.  All  the  laws  of  the  Gov- 
ernor and  Legislative  Assembly  shall  be  submitted  to,  and,  if 
disapproved  by  the  Congress  of  the  United  States,  the  same 
shall  be  null  and  of  no  effect. 

"  Sec.  VII.  And  be  it  further  enacted,  That  all  township 
officers,  and  all  county  officers,  except  Judicial  officers, -Justi- 
ces of  the  Peace,  Sheriffs,  and  Clerks  of  courts,  shall  be  elect- 
ed by  the  people,  in  such  manner  as  may  be  provided  by  the 
Governor  and  Legislative  Assembly.  The  Governor  shall 
nominate,  and,  by  and  with  the  advice  and  consent  of  the 
Legislative  Council,  shall  appoint,  all  Judicial  officers,  Justi- 
ces of  the  Peace,  Sheriffs,  and  all  Militia  officers,  except  those 
of  the  staff,  and  all  Civil  officers  not  herein  provided  for. 
Vacancies  occurring  in  the  recess  of  the  Council  shall  be 
filled  by  appointments  from  the  Governor,  which  shall  ex- 


WISCONSIN.  343 

pire  at  the  end  of  the  next  session  of  the  Legislative  Assem- 
bly ;  but  the  said  Governor  may  appoint,  in  the  first  instance, 
the  aforesaid  officers,  who  shall  hold  their  offices  until  the 
end  of  the  next  session  of  the  said  Legislative  Assembly. 

"  Sec.  VIII.  And  be  it  further  enacted,  That  no  member 
of  the  Legislative  Assembly  shall  hold  or  be  appointed  to 
any  office  created,  or  the  salary  or  emoluments  of  which  shall 
have  been  increased  whilst  he  was  a  member,  during  the 
term  for  which  he  shall  have  been  elected,  and  for  one  year 
after  the  expiration  of  such  term ;  and  no  person  holding  a 
commission  under  the  United  States,  or  any  of  its  officers, 
except  as  a  militia  officer,  shall  be  a  member  of  the  said 
Council,  or  shall  hold  any  office  under  the  Government  of 
the  said  Territory. 

"  Sec.  IX.  And  be  it  further  enacted,  That  the  Judicial 
power  of  the  said  Territory  shall  be  vested  in  a  Supreme 
Court,  District  Courts,  Probate  Courts,  and  in  Justices  of  the 
Peace.  The  Supreme  Court  shall  consist  of  a  Chief  Justice 
and  two  Associate  Judges,  any  two  of  whom  shall  be  a  quo- 
rum, and  who  shall  hold  a  term  at  the  seat  of  Government 
of  the  said  'Territory,  annually,  and  they  shall  hold  their 
offices  during  good  behavior.  The  said  Territory  shall  be 
divided  into  three  Judicial  Districts ;  and  a  District  Court  or 
courts  shall  be  held  in  each  of  the  three  Districts,  by  one  of 
the  Judges  of  the  Supreme  Court,  at  such  times  and  places 
as  may  be  prescribed  by  law.  The  jurisdiction  of  the  several 
courts  herein  provided  for.  both  appellate  and  original,  and 
that  of  the  Probate  Courts,  and  of  the  Justices  of  the  Peace, 
shall  be  as  limited  by  law :  Provided,  however,  that  Justi- 
ces of  the  Peace  shall  not  have  jurisdiction  of  any  matter  of 
controversy,  when  the  title  or  boundaries  of  land  may  be  in 
dispute,  or  where  the  debt  or  sum  claimed  exceeds  fifty  dol- 
lars. And  the  said  Supreme  and  District  Courts,  respective- 
ly, shall  possess  chancery  as  well  as  common  law  jurisdic- 
tion. Each  District  Court  shall  appoint  its  Clerk,  who  shall 


344  TERRITORY  OF 

keep  his  office  at  the  place  where  the  Court  may  be  held, 
and  the  said  Clerks  shall  also  be  the  Registers  in  Chancery ; 
and  any  vacancy  in  said  office  of  Clerk  happening  in  the  va- 
cation of  said  Court,  may  be  filled  by  the  Judge  of  said  Dis- 
trict, which  appointment  shall  continue  until  the  next  term 
of  said  Court.  And  writs  of  error,  bills  of  exception,  and 
appeals  in  chancery  causes,  shall  be  allowed  in  all  cases, 
from  the  final  decisions  of  the  said  District  Courts  to  the 
Supreme  Court,  under  such  regulations  as  may  be  prescribed 
by  law  ;  but  in  no  case  removed  to  the  Supreme  Court,  shall 
a  trial  by  jury  be  allowed  in  said  Court.  The  Supreme  Court 
may  appoint  its  own  Clerk,  and  every  Clerk  shall  hold  his 
office  at  the  pleasure  of  the  Court  by  which  he  shall  have 
been  appointed.  And  writs  of  error  and  appeals  from  the 
final  decisions  of  the  said  Supreme  Court  shall  be  allowed 
and  taken  to  the  Supreme  Court  of  the  United  States,  in  the 
same  manner,  and  under  the  same  regulations,  as  from  the 
Circuit  Courts  of  the  United  States,  where  the  value  of  the 
property,  or  the  amount  in  controversy,  to  be  ascertained  by 
the  oath  or  affirmation  of  either  party,  shall  exceed  one  thou- 
sand dollars.  And  each  of  the  said  District  'Courts  shall 
have  and  exercise  the  same  jurisdiction,  in  all  cases  arising 
under  the  Constitution  and  laws  of  the  United  States  as  is 
vested  in  the  Circuit  and  District  Courts  of  the  United  States. 
And  the  first  six  days  of  every  term  of  the  said  Courts,  or  so 
much  thereof  as  shall  be  necessary,  shall  be  appropriated  to 
the  trial  of  causes  arising  under  the  said  Constitution  and 
laws.  And  writs  of  error,  and  appeals  from  the  final  decis- 
ions of  the  said  Courts,  in  all  such  cases,  shall  be  made  to 
the  Supreme  Court  of  the  Territory,  in  the  same  manner  as 
in  other  cases.  The  said  Clerks  shall  receive,  in  all  such 
cases,  the  same  fees  which  the  Clerk  of  the  District  Court  of 
the  United  States  in  the  Northern  District  of  the  State  of 
New- York,  receives  for  similar  services. 

"  Sec.  X.   And  be  it  further  enacted,  That  there  shall  be 


WISCONSIN. 


345 


an  Attorney  for  the  said  Territory  appointed,  who  shall  con- 
tinue in  office  four  years,  unless  sooner  removed  by  the 
President,  and  who  shall  receive  the  same  fees  and  salary  as 
the  Attorney  of  the  United  States  for  the  Michigan  Territory. 
There  shall  also  be  a  Marshal  for  the  Territory  appointed, 
who  shall  hold  his  office  for  four  years,  unless  sooner  remo- 
ved by  the  President,  who  shall  execute  all  process  issuing 
from  the  said  Courts  when  exercising  their  jurisdiction  as 
Circuit  and  District  Courts  of  the  United  States.  He  shall 
perform  the  same  duties,  be  subject  to  the  same  regulations 
and  penalties,  and  be  entitled  to  the  same  fees,  as  the  Mar- 
shal of  the  District  Court  of  the  United  States  for  the  North- 
ern District  of  the  State  of  New-York  ;  and  shall,  in  addition, 
be  paid  the  sum  of  two  hundred  dollars,  annually,  as  a  com- 
pensation for  extra  services. 

"  Sec.  XL  And  be  it  further  enacted,  That  the  Governor, 
Secretary,  Chief  Justice  and  Associate  Judges,  Attorney,  and 
Marshal,  shall  be  nominated,  and,  by  and  with  the  advice 
and  consent  of  the  Senate,  appointed  by  the  President  of  the 
United  States.  The  Governor  and  Secretary,  to  be  appoint- 
ed as  aforesaid,  shall,  before  they  act,  as  such  respectively 
take  an  oath  or  affirmation  before  some  Judge,  or  Justice  of 
the  Peace  in  the  existing  Territory  of  Michigan,  duly  com- 
missioned and  qualified  to  administer  an  oath  or  affirmation, 
to  support  the  Constitution  of  the  United  States,  and  for  the 
faithful  discharge  of  the  duties  of  their  respective  offices ; 
which  said  oaths,  when  so  taken,  shall  be  certified  by  the 
person  before  whom  the  same  shall  have  been  taken,  and 
such  certificate  shall  be  received  and  recorded  by  the  said 
Secretary  among  the  Executive  proceedings.  And,  after- 
wards, the  Chief  Justice  and  Associate  Judges,  and  all  other 
civil  officers  in  said  Territory,  before  they  act  as  such,  shall 
take  a  like  oath  or  affirmation  before  the  said  Governor  or 
Secretary,  or  some  Judge  or  Justice  of  the  Territory  who  may 
be  duly  commissioned  and  qualified,  which  said  oath  or 


346  TERRITORY  OF 

affirmation  shall  be  certified  and  transmitted  by  the  person 
taking  the  same  to  the  Secretary,  to  be  by  him  recorded  as 
aforesaid;  and,  afterwards,  the  like  oath  or  affirmation  shall 
be  taken,  certified  and  recorded,  in  such  manner  and  form 
as  may  be  prescribed  by  law.  The  Governor  shall  receive 
an  annually  salary  of  two  thousand  five  hundred  dollars  for 
his  services  as  Governor  and  as  Superintendent  of  Indian 
affairs.  The  said  Chief  Justice  and  Associate  Judges  shall 
each  receive  an  annual  salary  of  eighteen  hundred  dollars. 
The  Secretary  shall  receive  an  annual  salary  of  twelve  hun- 
dred dollars.  The  said  salaries  shall  be  paid  quarter-yearly, 
at  the  Treasury  of  the  United  States.  The  members  of  the 
Legislative  Assembly  shall  be  entitled  to  receive  three  dol- 
lars each  per  day,  during  their  attendance  at  the  sessions 
thereof,  and  three  dollars  each  for  every  twenty  miles'  travel 
in  going  to  and  returning  from  the  said  sessions,  estimated 
according  to  the  nearest  usually-traveled  route.  There  shall 
be  appropriated,  annually,  the  sum  of  three  hundred  and  fifty 
dollars,  to  be  expended  by  the  Governor  to  defray  the  con- 
tingent expenses  of  the  Territory,  and  there  shall  also  be 
appropriated  annually,  a  sufficient  sum,  to  be  expended  by 
the  Secretary  of  the  Territory,  and  upon  an  estimate  to  be 
made  by  the  Secretary  of  the  Treasury  of  the  United  States, 
to  defray  the  expenses  of  the  Legislative  Assembly,  the  print- 
ing of  the  laws  and  other  incidental  expenses ;  and  the  Sec- 
retary of  the  Territory  shall  annually  account  to  the  Secretary 
of  the  Treasury  of  the  United  States  for  the  manner  in  which 
the  aforesaid  sum  shall  have  been  expended. 

"Sec.  XII.  And  be  it  further  enacted,  That  the  inhabi- 
tants of  the  said  Territory  shall  be  entitled  to,  and  enjoy,  all 
and  singular  the  rights,  privileges,  and  advantages,  granted 
and  secured  to  the  people  of  the  Territory  of  the  United 
States  northwest  of  the  river  Ohio,  by  the  articles  of  the 
compact  contained  in  the  ordinance  for  the  government  of 
the  said  Territory,  passed  on  the  thirteenth  day  of  July,  one 


WISCONSIN.  347 

thousand  seven  hundred  and  eighty-seven ;  and  shall  be  sub- 
ject to  all  the  conditions  and  restrictions  and  prohibitions  in 
said  articles  of  compact  imposed  upon  the  people  of  the  said 
Territory.  The  said  inhabitants  shall  also  be  entitled  to  all 
the  rights,  privileges,  and  immunities,  heretofore  granted  and 
secured  to  the  Territory  of  Michigan,  and  to  its  inhabitants, 
and  the  existing  laws  of  the  Territory  of  Michigan  shall  be 
extended  over  said  Territory,  so  far  as  the  same  shall  not  be 
incompatible  with  the  provisions  of  this  act,  subject,  never- 
theless, to  be  altered,  modified,  or  repealed,  by  the  Governor 
and  Legislative  Assembly  of  the  said  Territory  of  Wiscon- 
sin ;  and  further,  the  laws  of  the  United  States  are  hereby 
extended  over,  and  shall  be  in  force  in,  said  Territory, 
so  far  as  the  same,  or  any  provisions  thereof  may  be  ap- 
plicable. 

"Sec.  XIII.  And  be  it  further  enacted,  That  the  Legisla- 
tive Assembly  of  the  Territory  of  Wisconsin  shall  hold  its 
first  session  at  such  time  and  place  in  said  Territory  as  the 
Governor  thereof  shall  appoint  and  direct ;  and  at  said  ses- 
sion, or  a*s  soon  thereafter  as  may  by  them  be  deemed  expe- 
dient, the  said  Governor  and  Legislative  Assembly  shall 
proceed  to  locate  and  establish  the  seat  of  government  for 
said  Territory,  at  such  place  as  they  may  deem  eligible, 
which  place,  however,  shall  thereafter  be  subject  to  be  changed 
by  the  said  Governor  and  Legislative  Assembly.  And  twenty 
thousand  dollars,  to  be  paid  out  of  any  money  in  the  Treas- 
ury, not  otherwise  appropriated,  is  hereby  given  to  the  said 
Territory,  which  shall  be  applied  by  the  Governor  and  Leg- 
islative Assembly  to  defray  the  expenses  of  erecting  public 
buildings  at  the  seat  of  government. 

"  Sec.  XIV.  And  be  it  further  enacted,  That  a  Delegate  to 
the  House  of  Representatives  of  the  United  States,  to  serve  for 
the  term  of  two  years,  may  be  elected  by  the  voters  qualified 
to  elect  members  of  the  Legislative  Assembly,  who  shall  be 
entitled  to  the  same  rights  and  privileges  as  have  been  grant- 


348  TERRITORY  OF 

ed  to  the  Delegates  from  the  several  Territories  of  the  United 
States  to  the  said  House  of  Representatives.  The  first  elec- 
tion shall  be  held  at  such  time  and  place  or  places,  and  be 
conducted  in  such  manner,  as  the  Governor  shall  appoint  and 
direct.  The  person  having  the  greatest  number  of  votes 
shall  be  declared  by  the  Governor  to  be  duly  elected,  and  a 
certificate  thereof  shall  be  given  to  the  person  so  elected. 

"  Sec.  XV.  And  be  it  further  enacted,  That  all  suits,  pro- 
cess, and  proceedings,  and  all  indictments  and  informations 
which  shall  be  undetermined  on  the  third  day  of  July  next, 
in  the  courts  held  by  the  additional  Judge  for  the  Michigan 
Territory,  in  the  counties  of  Brown  and  Iowa ;  and  all  suits, 
process,  and  proceedings,  and  all  indictments  and  informa- 
tions which  shall  be  undetermined  on  the  said  third  day  of 
July,  in  the  County  Courts  of  the  several  counties  of  Craw- 
ford, Brown,  Iowa,  Dubuque,  Milwalke  [Milwaukie],  and  Des 
Moines,  shall  be  transferred  to  be  heard,  tried,  prosecuted, 
and  determined,  in  the  District  Courts  hereby  established, 
which  may  include  the  said  counties. 

"Sec.  XYI.  And  be  it  further  enacted,  That  all  causes  which 
shall  have  been  or  may  be  removed  from  the  courts  held  by 
the  additional  judge  for  the  Michigan  Territory,  in  the 
counties  of  Brown  and.  Iowa,  by  appeal  or  otherwise,  into 
the  Supreme  Court  for  the  Territory  of  Michigan,  and  which 
shall  be  undetermined  therein  on  the  third  day  of  July  next, 
shall  be  certified  by  the  Clerk  of  the  said  Supreme  Court,  and 
transferred  to  the  Supreme  Court  of  said  Territory  of  Wis- 
consin, there  to  be  proceeded  in  to  final  determination,  in  the 
same  manner  that  they  might  have  been  in  the  said  Supreme 
Court  of  the  Territory  of  Michigan. 

"Sec.  XVII.  And  be  it  further  enacted,  That  the  sum  of 
five  thousand  dollars  be,  and  the  same  is  hereby  appropriated, 
out  of  any  money  in  the  treasury  not  otherwise  appropriated, 
to  be  expended  by  and  under  the  direction  of  the  Legislative 
Assembly  of  said  Territory,  in  the  purchase  of  a  library  for 


WISCONSIN.  349 

the  accommodation  of  said  Assembly,  and  of  the  Supreme 
Court  hereby  established.* 

III.  AN  ACT  TO  ENABLE  THE  PEOPLE  OF  WISCONSIN 
TERRITORY  TO  FORM  A  CONSTITUTION  AND  STATE 
GOVERNMENT,  AND  FOR  THE  ADMISSION  OF  SUCH  STATE 
INTO  THE  UNION.  APPROVED  AUGUST  6,  1846. 

"  Sec.  I.  Be  it  enacted  by  the  Senate  and  House  of  Represent- 
atives of  the  United  States  of  America  in  Congress  assembled, 
That  the  people  of  the  Territory  of  Wisconsin  be  and  they 
are  hereby  authorized  to  form  a  Constitution  and  State  Gov- 
ernment, for  the  purpose  of  being  admitted  into  the  Union 
on  an  equal  footing  with  the  original  States  in  all  respects 
whatsoever,  by  the  name  of  the  State  of  Wisconsin,  with  the 
following  boundaries,  to  wit:  Beginning  at  the  northeast 
corner  of  the  State  of  Illinois — that  is  to  say,  at  a  point  in 
the  centre  of  Lake  Michigan,  where  the  line  of  forty-two  de- 
grees and  thirty  minutes  of  north  latitude  crosses  the  same ; 
thence,  running  with  the  boundary  line  of  the  State  of  Michi- 
gan, through  Lake  Michigan,  Green  Bay,  to  the  mouth  of 
the  Menomonie  River ;  thence  up  the  channel  of  said  last 
mentioned  river  to  Lake  Brule  river ;  thence  up  said  last 
mentioned  river  to  Lake  Brule ;  thence  along  the  southern 
shore  of  Lake  Brule  in  a  direct  line  to  the  centre  of  the  chan- 
nel between  Middle  and  South  islands,  in  the  Lake  of  the 

*By  an  act  of  Congress,  approved  June  12,  1838,  all  that  part  of  the  Wisconsin 
Territory  situate  west  of  the  Mississippi,  and  which  belonged  to  the  Louisiana  pur- 
chase, was  set  off  into  a  territory  called  Iowa,  and  which  has  since  become  a  Slate. 
[Sess.  Laws,  1838.] 

On  the  3d  of  March,  1839,  an  act  was  passed  defining  the  eastern  boundary  of 
Wisconsin.  [Sess.  Laws,  1839.] 

On  the  3d  of  March,  1841,  an  act  was  passed  providing  for  a  survey  and  exam- 
ination of  the  country  between  the  mouths  of  the  Menomonie  and  Montreal  rivers, 
and  for  the  purpose  of  designating  and  marking  the  boundary  line  between  the 
State  of  Michigan  and  the  Territory  of  Wisconsin.  [Vide  Sess.  Laws,  1841.] 

The  emigration  to  Wisconsin,  since  the  organization  of  this  Territory  has  been 
unexampled  ;  and  the  fertility  of  its  soil,  the  salubrity  of  its  climate,  and  its  advan- 
tages for  agriculture,  have  more  than  realized  the  most  sanguine  expectations. 


350  TERRITORY  OF 

Desert ;  thence  in  a  direct  line  to  the  head  waters  of  the 
Montreal  river,  as  marked  upon  the  survey  made  by  Captain 
Cramm ;  thence  down  the  main  channel  of  the  Montreal 
river  to  the  middle  of  Lake  Superior;  thence  through  the 
centre  of  Lake  Superior  to  the  mouth  of  the  St.  Louis  river; 
thence  up  the  main  channel  of  said  river  to  the  first  rapids 
in  the  same,  above  the  Indian  village,  according  to  Nicol- 
let's  map ;  thence  due  south  to  the  main  branch  of  the  river 
St.  Croix ;  thence  down  the  main  channel  of  said  river  to 
the  Mississippi ;  thence  down  the  centre  of  the  main  chan- 
nel of  that  river  to  the  northwest  corner  of  the  State  of  Illi- 
nois ;  thence  due  east  with  the  northern  boundary  of  the 
State  of  Illinois  to  the  place  of  beginning,  as  established  by 
"  An  act  to  enable  the  people  of  the  Illinois  Territory  to 
form  a  Constitution  and  State  Government,  and  for  the  ad- 
mission of  such  State  into  the  Union  on  an  equal  footing 
with  the  original  States.  Approved  April  eighteen,  eighteen 
hundred  and  eighteen." 

"  Sec.  II.  And  be  it  further  enacted,  That  to  prevent  all 
disputes  in  reference  to  the  jurisdiction  of  islands  in  the  said 
Brule  and  Menomonie  rivers,  the  line  be  so  run  as  to  include 
within  the  jurisdiction  of  Michigan  all  the  islands  in  the 
Brule  and  Menomonie  rivers,  (to  the  extent  in  which  said 
rivers  are  adopted  as  a  boundary,)  down  to,  and  inclusive  of, 
the  Q,uinnesec  falls  of  the  Menomonie ;  and  from  thence  the 
line  shall  be  so  run  as  to  include  within  the  jurisdiction  of 
Wisconsin  all  the  islands  in  the  Menomonie  river,  from  the 
falls  aforesaid,  down  to  the  junction  of  said  river  with 
Green  Bay  ;  provided,  that  the  adjustment  of  boundary,  as 
fixed  in  this  act,  between  Wisconsin  and  Michigan  shall  not 
be  binding  on  Congress,  unless  the  same  shall  be  ratified  by 
the  State  of  Michigan  on  or  before  the  first  day  of  June,  one 
thousand  eight  hundred  and  forty-eight. 

"  Sec.  III.  And  be  it  further  enacted,  That  the  said  State  of 
Wisconsin  shall  have  concurrent  jurisdiction  on  the  Missis- 


WISCONSIN.  351 

sippi,  and  all  other  rivers  and  waters  bordering  on  the  said 
State  of  Wisconsin,  so  far  as  the  same  shall  form  a  common 
boundary  to  said  State  and  any  other  State  or  States  now  or 
hereafter  to  be  formed  or  bounded  by  the  same  ;  and  said 
river  and  waters,  and  the  navigable  waters  leading  into  the 
same,  shall  be  common  highways,  and  forever  free,  as  well 
to  the  inhabitants  of  said  State  as  to  all  other  citizens  of 
the  United  States,  without  any  tax,  duty,  impost  or  toll 
therefor. 

"  Sec.  IV.  And  be  it  further  enacted,  That  from  and  after 
the  admission  of  the  State  of  Wisconsin  into  the  Union,  in 
pursuance  of  this  act,  the  laws  of  the  United  States,  which 
are  not  locally  inapplicable,  shall  have  the  same  force  and 
effect  within  the  State  of  Wisconsin  as  elsewhere  within  the 
United  States ;  and  said  State  shall  constitute  one  district, 
and  be  called  the  district  of  Wisconsin  ;  and  a  District  Court 
shall  be  held  therein,  to  consist  of  one  Judge,  who  shall  pre- 
side in  the  said  district,  and  be  called  a  District  Judge.  He 
shall  hold  at  the  seat  of  government  of  said  State  two  ses- 
sions of  said  court  annually,  on  the  first  Mondays  in  Janua- 
ry and  July,  and  he  shall  in  all  things  have  and  exercise  the 
same  jurisdiction  and  powers  which  were  by  law  given  to 
the  Judge  of  the  Kentucky  District,  under  an  act  entitled 
"  An  act  to  establish  the  Judicial  Courts  of  the  United  States." 
He  shall  appoint  a  Clerk  for  said  District,  who  shall  reside 
and  keep  the  records  of  said  Court  at  the  place  of  holding 
the  same ;  and  shall  receive  for  the  services  performed  by 
him  the  same  fees  to  which  the  Clerk  of  the  Kentucky  Dis- 
trict is  by  law  entitled  for  similar  services.  There  shall  be 
allowed  to  the  Judge  of  said  District  Court  the  annual  com- 
pensation of  fifteen  hundred  dollars,  to  commence  from  the 
date  of  his  appointment,  to  be  paid  quarterly  at  the  Treasury 
of  the  United  States. 

ct  Sec.  V.  And  be  it  further  enacted,  That  there  shall  be 
appointed  in  said  District  a  person  learned  in  the  law,  to  act 


352  TERRITORY  OF 

as  Attorney  of  the  United  States,  who,  in  addition  to  the 
stated  fees,  shall  be  paid  the  sum  of  two  hundred  dollars  an- 
nually by  the  United  States,  as  a  full  compensation  for  all 
extra  services  ;  the  said  payment  to  be  made  quarterly,  at  the 
treasury  of  the  United  States.  And  there  shall  also  be  ap- 
pointed a  Marshal  for  said  District,  who  shall  perform  the 
same  duties,  be  subject  to  the  same  regulations  and  penalties, 
and  be  entitled  to  the  same  fees  as  are  prescribed  and  allow- 
ed to  Marshals  in  other  districts ;  and  shall,  moreover,  be  al- 
lowed the  sum  of  two  hundred  dollars  annually,  as  a  com- 
pensation for  all  extra  services. 

"  Sec  VI.  And  be  it  further  enacted,  That,  until  another 
census  shall  be  taken  and  apportionment  made,  the  State  of 
Wisconsin  shall  be  entitled  to  two  Representatives  in  the 
Congress  of  the  United  States. 

"  Sec.  VII.  And  be  it  further  enacted,  That  the  following 
propositions  are  hereby  submitted  to  the  Convention  which 
shall  assemble  for  the  purpose  of  forming  a  Constitution  for 
the  State  of  Wisconsin,  for  acceptance  or  rejection ;  and  if 
accepted  by  said  Convention,  and  ratified  by  an  article  in 
said  Constitution,  they  shall  be  obligatory  on  the  United  States: 

First.  That  section  numbered  sixteen,  in  every  township 
of  the  public  lands  in  said  State,  and  where  such  section  has 
been  sold  or  otherwise  disposed  of,  other  lands  equivalent 
thereto,  and  as  contiguous  as  may  be,  shall  be  granted  to 
said  State,  for  the  use  of  Schools. 

Second.  That  the  seventy-two  sections,  or  two  entire 
townships  of  land  set  apart  and  reserved  for  the  use  and  sup- 
port of  a  university  by  an  act  of  Congress,  approved  on  the 
twelfth  day  of  June,  eighteen  hundred  and  thirty-eight,  en- 
titled "  an  act  concerning  a  seminary  of  learning  in  the  Ter- 
ritory of  Wisconsin,"  are  hereby  granted  and  conveyed  to  the 
State,  to  be  appropriated  solely  to  the  use  and  support  of  such 
university,  in  such  manner  as  the  Legislature  may  prescribe. 

Third.   That  ten  entire  sections  of  land,  to  be  selected, 


WISCONSIN.  353 

located  under  the  direction  of  the  Legislature,  in  legal  di- 
visions of  not  less  than  one-quarter  section,  from  any  of  the 
unappropriated  lands  belonging  to  the  United  States  within 
the  said  State,  are  hereby  granted  to  the  said  State,  for  the 
purpose  of  completing  the  public  buildings  of  the  said  State, 
or  for  the  erection  of  others  at  the  seat  of  government,  under 
the  direction  of  the  Legislature  thereof. 

Fourth.  That  all  salt  springs  within  said  State,  not  ex- 
ceeding twelve  in  number,  with  six  sections  of  land  adjoin- 
ing, or  as  contiguous  as  may  be  to  each,  shall  be  granted  to 
the  State  for  its  use  ;  the  same  to  be  selected  by  the  Legis- 
lature thereof,  within  one  year  after  the  admission  of  said 
State;  and  when  so  selected,  to  be  used  or  disposed  of -on 
such  terms,  conditions  and  regulations  as  the  Legislature 
shall  direct :  provided,  that  no  salt  spring  or  land,  the  right 
whereof  is  now  vested  in  any  individual  or  individuals,  or 
which  may  hereafter  be  confirmed  or  adjudged  to  any  indi- 
vidual or  individuals,  shall,  by  this  section,  be  granted  to 
said  State. 

"Fifth.  That  five  percent  of  the  net  proceeds  of  sales  of 
all  public  lands  lying  within  the  said  State,  which  have  been 
or  shall  be  sold  by  Congress,  from  and  after  the  admission 
of  said  State  into  the  Union,  after  deducting  all  the  expenses 
incident  to  the  same,  shall  be  paid  to  the  said  State  for  the 
purpose  of  making  public  roads  and  canals  in  the  same,  as 
the  Legislature  shall  direct:  provided,  that  the  foregoing 
propositions  herein  offered  are  on  the  condition  that  the  said 
Convention  which  shall  form  the  Constitution  of  said  State 
shall  provide  by  a  clause  in  said  Constitution,  or  an  ordinance, 
irrevocable  without  the  consent  of  the  United  States,  that 
said  State  shall  never  interfere  with  the  primary  disposal  of 
the  soil  within  the  same  by  the  United  States,  nor  with  any 
regulations  Congress  may  find  necessary  for  securing  the  title 
in  such  soil  to  bona  fide  purchasers  thereof;  and  that  no  tax 

shall  be  imposed  on  lands  the  property  of  the  United  States ; 
15 


354  CONSTITUTION  OF 

and  that  in  no  case  shall  non-resident  proprietors  be  taxed 
higher  than  residents.* 

IV.       THE    CONSTITUTION    OF    WISCONSIN. 

An  organic  law  for  the  State  of  Wisconsin  was  framed  and 
adopted  at  a  Convention  held  at  Madison,  on  the  fourteenth 
day  of  December,  1846.  That  document  declared  the  consent 
of  the  people  to  the  boundaries  of  the  State,  as  the  same  were 
prescribed  in  the  act  to  enable  them  to  form  a  constitution 
and  State  government,  yet  suggested  their  preference  for  a 
boundary  that  should  leave  the  rapids  in  the  St.  Louis  river, 
and  run  thence  southwardly  to  a  point  fifteen  miles  east  of 
the  most  easterly  point  on  Lake  St.  Croix  ;  thence  due  south 
to  the  main  channel  of  the  Mississippi,  and  thence  down  the 
same  to  the  boundary  prescribed  in  said  act  of  Congress.  It 
accepted  the  terms  proposed  by  Congress  concerning  taxation 
and  the  primary  disposal  of  the  soil,  and  expressly  ordained 
that  the  State  should  never  interfere  with  the  primary  disposal 
of  such  soil  by  the  United  States,  nor  with  any  regulations 
Congress  might  find  necessary  for  securing  the  title  in  such 
soil  to  bona  fide  purchasers  thereof ;  that  no  tax  should  be 
imposed  on  land  belonging  to  the  United  States ;  and  that 
in  no  case  should  non-resident  proprietors  be  taxed  higher  than 
residents.  It  declared  that  the  State  should  have  concurrent 
jurisdiction  on  the  river  Mississippi,  and  on  every  other  river 
and  lake  bordering  on  the  said  State  so  far  as  any  river  or 
lake  should  form  a  common  boundary  to  the  same,  and  any 
other  State  or  States,  Territory  or  Territories  then  or  thereafter 
to  be  formed  and  bounded  by  the  same  ;  and  that  the  Missis- 
sippi and  the  navigable  waters  leading  into  the  same,  and  that 

*  In  1847,  an  act  amendatory  of  the  above  was  passed,  in  and  by  which  the 
northwestern  boundary  of  Wisconsin  was  adjusted,  and  brought  to  the  line  which 
demarked  the  old  northwestern  territory.  Wisconsin  now  covers  none  of  the  Ilde- 
fonso,  or  Louisiana  purchase,  but  deduces  her  entire  title  from  the  cession  of  Vir- 
ginia, although  it  is  very  questionable  whether  the  ancient  charter  of  Virginia,  in 
fact,  covered  any  part  of  Wisconsin. 


WISCONSIN. 


355 


the  St.  Lawrence,  and  the  carrying  places  between  the  same 
should  be  common  highways,  and  forever  free,  as  well  to  the 
inhabitants  of  said  State  as  to  the  citizens  of  the  United  States, 
without  any  tax,  impost,  or  duty  therefor ;  that  no  law  should 
be  passed  to  take  away  or  abridge  the  rights  of  owners  to 
the  riparian  soil,  unless  in  the  same  law  provision  be 
made  for  full  compensation  to  the  riparian  owners ;  that 
lands  and  other  property  which  had  accrued  to  the  Ter- 
ritory of  Wisconsin  by  grant,  gift,  purchase,  forfeiture, 
escheat,  or  otherwise,  should  vest  in  the  State ;  and  that 
the  people,  in  their  right  of  sovereignty,  should  be  deemed 
to  possess  the  ultimate  property  in  and  to  all  lands  within 
the  jurisdiction  of  the  State ;  and  further,  that  all  lands, 
the  title  to  which  should  fail  from  a  defect  of  heirs,  should 
revert  or  escheat  to  the  people.  It  however  remains  un- 
adopted by  the  people,  and  until  the  same  shall  be  ratified, 
its  provisions  will  not  have  effect.* 

V.      LAND   TITLES     GENERALLY,    IN    WISCONSIN. 

It  has  been  observed  that  Wisconsin  was  constructively 
colonized  by  the  French  at  an  early  day ;  that  it  was  capit- 
ulated by  the  Marquis  Ue  Vandreuil  to  Gen.  Amherst,  and 
confirmed  to  Great  Britain  by  treaty,  in  1763 ;  that  it  was 
claimed  to  have  been  included  in  the  chartered  limits  of 
Virginia,  over  which  jurisdiction  was  relinquished  by  Great 
Britain  in  1783 ;  and  that  the  title  to  the  soil  vested  in  the 
United  States  under  the  cession  of  Virginia.  [Ante  140.] 

The  valid  and  subsisting  title,  therefore,  to  all  lands  within 
the  State  rests  either  in  the  United  States,  or  was  derived 
from  the  General  Government  by  the  State  or  individuals. 

*  Although  Wisconsin  may  be  regarded  as  a  State,  she  will  have  a  territorial  or- 
ganization until  a  Constitution  for  a  State  government  shall  have  heen  adopted  by 
the  people.  The  provisions  in  the  instrument  adopted  by  the  Convention  in  De- 
cember last,  concerning  banks  and  exemptions,  proved  unsatisfactory  to  the  people, 
and  will  doubtless  occasion  its  rejection.  If,  however,  it  be  adopted,  the  document 
will  be_ingerted  in  the  Appendix. 


356  LAND  TITES  IN 

As  to  the  nature  and  divisions  of  estates  in  land,  the  Legis- 
lative Assembly  have  patterned  after  Michigan,  of  which 
Wisconsin  was  formerly  a  portion.  For  information  in  that 
behalf,  therefore,  reference  may  be  had  to  antecedent  pages 
298,  and  347. 

All  persons  of  lawful  age,  residing  in  Wisconsin,  are  au- 
thorized and  permitted  to  convey  real  estate ;  and  all  not 
residing  in,  but  owning  lands  therein,  may  convey,  according 
to  the  laws  of  Wisconsin,  or  of  the  State  or  Territory  where 
such  persons  reside.  The  common  law  rule  governs  as  to 
capacity.* 


*  The  Indians  have  not  entirely  removed  from  Wisconsin,  yet  in  the  more  set' 
tied  portions  of  the  State,  but  few  remain.  Most  of  them  have  accepted  other 
lands  in  lieu  of  their  Wisconsin  possessions,  and  have  actually  gone  beyond  the 
Mississippi,  to  take  possession  of  the  same.  Lapham,  in  his  Sketches  of  Wiscon- 
sin, published  in  1846,  observes  that  the  Mcnomonies  frequently  take  up  their 
winter  quarters  on  the  head  branches  of  the  Rock  river,  and  other  places  in  that 
vicinity,  and  continue  to  bring  their  peltries  to  Milwaukie  for  sale.  On  the  borders 
of  Lake  Superior,  the  Chippewas  are  the  most  numerous.  The  Sioux  or  Dacotas, 
tribes  inhabiting  the  western  shores  of  the  Mississippi,  often  cross  over  and  range 
in  the  northern  parts  of  Wisconsin.  Some  Winnebagoes  and  Pottawattamies  also* 
yet  remain  within  the  State. 

It  is  worthy  of  remark,  that  there  are  other  Indians,  who  removed  from  New- 
York  in  1833,  with  the  Oneidas,  who  have  been  admitted  to  all  the  rights  and  priv- 
ileges of  citizens  of  the  United  States.  They  are  Stockbridges,  and  Brothertov •••-. 
and  reside  on  the  east  side  of  Lake  Winnebago,  in  Calumet  county.  The  history 
of  our  government  records  no  other  case  of  the  kind  ;  yet  the  experiment  is  thought 
to  promise  vast  benefits  to  that  unfortunate  portion  of  our  race.  In  character  and 
habits,  they  are  said  to  be  conformed  to  the  whites.  They  are  temperate,  upright, 
and  industrious  farmers,  managing  their  temporal  affairs  with  ordinary  skill,  and 
seem  to  be  rewarded  with  a  fair  degree  of  thrift  and  comfort.  They  have  been 
represented  in  the  Legislature,  by  one  of  their  own  people,  and  seem  to  manifest  a 
watchful  anxiety  for  the  welfare  and  perpetuity  of  our  government. 

They  hold  their  lands  generally  by  a  special  grant,  made  to  them  in  exchange  for 
their  former  possessions  in  New-York,  yet  some  have  title  under  individual  pur- 
chase. 

For  the  disposal  of  the  unsold  lands  of  the  General  Government,  in  this  State, 
land  offices  are  kept  open  at  Milwaukee,  Mineral  Point,  and  Green  Bay. 

The  Milwaukee  Land  District  covers  all  land  from  range  number  nine,  east  to 
the  Lake ;  and  from  the  Illinois  line  to  town  ten,  inclusive ;  and  also  towns  eleven 
and  twelve,  in  the  ranges  number  twenty,  twenty-one  and  twenty-two. 

The  Green  Bay  Land  District  covers  all  the  region  lying  north  of  that  of  Mil- 


WISCONSIN.  357 


VI.  THE  EXECUTION  OF  DEEDS  AND  MORTGAGES  IN 
WISCONSIN. 

The  Statutes  of  Wisconsin  provide  that  no  conveyance 
shall  be  effectual  to  pass  the  title  to  real  estate,  unless  the 
same  shall  be  in  writing,  and  shall  be  subscribed  and  sealed 
by  the  grantor  or  grantors,  or  by  his,  her,  or  their  lawful 
agent.  [Stat.  Wisconsin  T.,  178.] 

Most  of  the  enactments  concerning  conveyances,  now  in 
force,  were  derived  from  those  of  Michigan,  and  are  found 
to  be,  in  most  respects,  literal  transcripts  therefrom.  The 
statutes  impose  but  few  restraints  upon  alienation,  the  people 
being  averse  to  all  superfluity  and  complication  in  thp  forms 
and  methods  of  consummating  bargains  and  sales.  Yet, 
from  the  greater  dignity  of  a  freehold,  in  the  eye  of  the  law, 
as  well  as  in  the  accepted  judgment  of  the  people,  more 
form  and  solemnity  are  required  in  the  conveyance  of 
land  than  in  the  transfer  of  chattels  alone.  Whilst  personal 
estate  of  small  value  may  be  safely  transferred  by  oral  dec- 
larations of  the  sale,  and  larger  amounts  by  mere  memoran- 
da, or  equivalent  acts,  deeds  are  required  to  be  formally  in- 
dicted on  paper,  parchment,  or  some  similar  substance,  sus- 
ceptible of  being  delivered  and  recorded,  and  to  be  solemnly 
subscribed  and  sealed  by  the  party  or  parties  making  the 
grant.  No  rule  less  stringent  would  be  compatible  with  the 
true  interests  of  individuals,  or  the  public. 

Deeds  must  be  signed.  The  statute  requires  them  to  be 
subscribed  by  the  grantor  or  grantors,  or  by  his,  her,  or  their 
lawful  agent.  A  lawful  agent  is  defined  to  be,  one  who  has 
been  appointed  to  perform  the  act  of  conveyance  for  the 

\vaukee ;  and  the  Mineral  Point  District  lies  west  of  the  Milwaukee  District,  ex- 
tending to  the  Mississippi  river,  and  including  the  mineral  region  in  that  quarter. 

The  Reports  of  the  Commissioner  of  the  General  Land  Office  at  Washington, 
show  that  three  millions  of  acres  of  land  in.  Wisconsin  have  been  already  sold. 
[Lapham's  Wisconsin.] 


358  EXECUTION  OF  DEEDS  IN 

owner,  by  an  instrument  in  writing,  executed,  attested  and 
acknowledged  by  such  owner,  in  all  respects  as  the  deed  to 
be  executed  by  virtue  of  such  appointment,  is  required  to  be. 
The  signature  may  be  by  any  mark  that  the  grantor  is  ac- 
customed to  use  for  a  sign  manual ;  yet,  if  he  or  she  have 
the  ability  to  write  his  or  her  name,  he  or  she  should  sub- 
scribe the  same  at  the  bottom  of  the  deed. 

They  must  be  sealed.  Unsealed  documents  are  not  deeds 
within  the  statute.  Hence  as  real  estate  cannot  be  conveyed 
except  by  a  deed  or  deeds,  executed  by  and  between  parties 
able  and  competent  to  contract,  it  follows  that  a  seal  is 
requisite  to  all  conveyances.  According  to  the  common 
law,  a  seal  is  wax,  having  thereon  an  impression — "  sigillum 
est  cera  impressa,  quia  cera  sine  impressione  non  est  sigil- 
lum ;"  and  although  the  solemnity  and  dignity  of  deeds  are 
measurably  destroyed  by  any  relaxation  of  the  rule,  im- 
pressions upon  wax  have  been  so  long  in  disuse,  that  in  the 
States  west  of  Pennsylvania,  the  courts  allow  a  scroll  as  a 
valid  substitute  for  a  seal.  This,  in  effect,  destroys  the  sa- 
cred character  of  deeds ;  for  by  permitting  mere  flourishes 
with  a  pen  to  suffice  for  seals,  all  distinction  between  writings 
sealed  and  unsealed  is  virtually  abolished-* 
!« I  They  must  be  attested.  Not  only  must  the  grantor  or 
grantors  subscribe  and  seal  a  deed,  but  the  same  is  required 
to  be  done  in  the  presence  of  two  or  more  competent  wit- 
nesses, "  who  shall  at  the  same  time  attest  the  same  by  their 
signatures.  [Id.,  179.] 

Such  witnesses  should  not  be  persons,  who,  on  account  of 
infamy  of  character,  of  having  been  convicted  of  infamous 
crimes,  or  of  interest,  are  incompetent  to  testify  in  a  court  of 

*  The  usages  of  antiquity  are  the  foundation  of  the  common  law  requirements 
concerning  seals.  See  Genesis,  38, 18;  Exodus,  28,  11 ;  Esther,  8.  8  and  10;  Jer- 
emiah, 32,  10  and  11;  Cicero  Acad.,  2 ;  Lucul,  4,  26;  Heinecc.  Elem.  Jur.  Civ, 
497.  Whether  land  should  be  conveyed  by  parol,  as  was  the  case  in  the  early  pe- 
riods of  English  history,  is  not  now  a  question  ;  yet  it  is  suggested  that  the  abolition 
of  seals  is  a  relapse  toward  parol  conveyances, 


WISCONSIN.  359 

justice  at  the  time  of  their  attesting  any  deed ;  yet  if  such 
witnesses  shall  be  competent  at  the  time,  their  subsequent 
incompetency  from  any  cause  will  not  affect  or  impair  the 
validity  of  the  writing  so  attested. 

They  must  be  delivered.  This  is  not  in  terms  required  ; 
yet  as  deeds  take  effect  only  from  the  time  of  delivery  it  is 
an  incident  essential  to  their  due  execution.  Deeds  may  be 
delivered  to  the  party  grantees,  or  to  any  other  person  au- 
thorized by  them  to  receive  the  same.  But  until  delivered 
to  the  grantees,  or  to  some  one  for  their  benefit,  the  estate  in 
the  land  intended  to  be  conveyed  does  not  pass,  but  remains 
in  the  grantor.  The  same  rule  obtains  in  respect  to  defeasi- 
ble, that  controls  indefeasible  conveyances.  Mortgages  of 
real  estate,  therefore,  are  required  to  be  executed  in  the 
same  manner  as  deeds. 

VII.     THE    PROOF    AND    ACKOWLEDGMENT     OP     DEEDS    AND 
MORTGAGES    IN    WISCONSIN. 

By  the  territorial  statutes,  (being  the  only  regulations  in 
force,)  it  is  provided  that  all  deeds  of  real  estate  shall  be  ac- 
knowledged by  the  party  or  parties  executing  the  same,  or 
proved  by  one  or  more  of  the  subscribing  witnesses  thereto, 
before  a  Judge,  Notary  Public,  or  Justice  of  the  Peace,  with- 
in the  territory;  and  that  it  is  the  duty  of  the  Judge,  Notary, 
or  Justice  taking  any  acknowledgment  or  proof  of  any  deed, 
mortgage,  or  other  conveyance  of  real  estate,  to  endorse 
thereon  a  certificate  of  such  proof  or  acknowledgment. 
[Stat.  Wis.  T.,  178.] 

The  provisions  concerning  acknowledgments  by  married 
women  who  join  with  their  husbands  in  the  conveyance  of 
land  of  which  the  latter  shall  be  seized  during  coverture,  are 
somewhat  ambiguous  ;  yet  they  may  acknowledge  deeds  as 
if  they  were  sole,  and  release  their  rights  of  dower  without 
their  husbands'  joining  in  the  deed  or  release.  [Id.,  179.] 

But  the  acknowledging  officer  is  required  to  set  forth,  in 


360  ACKNOWLEDGMENT  OF  DEEDS  IN 

his  certificate  of  proof  or  acknowledgment,  every  act  done  by 
him  in  the  taking  of  such  acknowledgment.  If  he  know 
the  grantor  or  grantors  to  be  the  person  or  persons  described 
in,  and  who  executed  the  conveyance  in  hand,  such  know- 
ledge is  a  material  fact,  and  the  same  should  appear  in  his  certi- 
ficate. If  the  grantor  or  grantors  shall  be  unknown  to  him, 
and  proof  of  his  or  their  identity  be  taken,  the  name  of  the 
witness  by  whom  such  proof  shall  be  made,  the  place  of  his 
or  their  residence,  and  the  facts  testified  to  by  him,  or  them, 
should  be  set  forth.  So  also  when  a  deed  shall  be  proved  by 
a  subscribing  witness,  the  name  of  such  witness,  the  fact  of 
his  being  sworn,  his  residence,  his  attestation  of  the  deed  with 
another  witness,  in  the  presence  of,  and  at  the  request  of  the 
grantor,  should  be  embodied  in  his  certificate.  To  such 
certificate,  when  written,  should  be  subscribed  not  only  the 
proper  name  of  the  acknowledging  officer,  but  his  official  ti- 
tle at  length.  If  the  officer  be  a  Judge,  it  should  appear  of 
what  court ;  if  a  Notary  Public,  or  Justice  of  the  Peace,  it 
should  appear  of  what  county. 

Concerning  deeds  and  mortgages  of  land  in  Wisconsin, 
which  are  executed  in  another  State  or  territory,  it  is  pro- 
vided that  they  shall  be  executed  in  such  a  manner,  and  be- 
fore such  officer  as  would  entitle  them  to  record  in  the  State 
or  territory  where  they  are  executed,  had  the  land  conveyed 
been  located  therein.  [Id.,  180.J 

In  every  other  respect,  the  statutes  concerning  acknow- 
ledgments and  the  authentication  thereof,  are  substantially 
the  same  as  those  in  Michigan.  [See  Ante,  309,  310.] 

VIII.  THE  RECORDING  OF  DEEDS  AND  MORTGAGES  IN 
WISCONSIN,  AND  THE  EFFECT  THEREOF. 

Registers  of  Deeds  are  required,  by  the  territorial  statutes 
of  Wisconsin,  to  be  elected  annually,  in  the  counties  organ- 
ized, who  shall  reside  and  keep  their  offices  at  the  county 
seats  of  the  same  respectively.  They  hold  their  offices  for 


WISCONSIN. 


361 


one  year,  and  until  their  successors  are  qualified.  Their 
terms  commence  on  the  first  day  of  January.  [Sess.  Laws 
of  1840  and  1841,35.] 

All  deeds  and  mortgages  affecting  the  title  to  real  estate  in 
Wisconsin  are  required  to  be  recorded  in  the  Register's  of- 
fice of  the  county  in  which  the  land  so  conveyed  or  affected 
shall  be  situated. 

Unrecorded  deeds  and  mortgages  are  presumed  fraudulent 
arid  void  as  against  subsequent  bona  fide  purchasers,  and 
mortgagees  for  a  valuable  consideration,  without  notice  of 
such  unrecorded  deeds  and  mortgages. 

But  to  entitle  any  deed  or  mortgage  to  be  recorded,  it  must 
be  executed  in  all  respects  according  to  law,  and  duly  attested, 
proven  or  acknowledged ;  and  when  executed  in  a  foreign 
State,  the  certificate  of  proof  or  acknowledgment  must  be 
authenticated,  as  indicated,  ante  311.*  [Stat.  Wis.  T.,  180.] 

IX.  THE  EXECUTION  OF  WILLS  OF  REAL  ESTATE  IN 
WISCONSIN. 

The  Statutes  of  Wisconsin  provide  that  all  wills  of  real 
estate  shall  be  in  writing,  and  shall  be  signed  by  the  testator 
or  testatrix,  or  by  some  one  for  him  or  her,  in  his  or  her 

*  Non-residents  are  informed,  thru  on  the  first  of  January,  1347,  there  were  the 
f  >llo\ving  counties,  or  recording  districts  in  Wisconsin,  of  which  those  having  coun- 
ty seats  annexed,  are  organized  for  county  purposes.  The  statement  is  given  on 
t'le  authority  of  Gen.  Rufus  King,  of  the  Milwaukic  Sentinel  and  Gazette,  and 
George  W.  Foster,  Esq.,  Counsellor,  at  Poi't  Washington,  and  may  be  relied  upon* 
The  name  of  each  county  is  presented  in  small  capital  letters,  and  the  county  seats 
of  such  as  are  organized,  thereto  annexed,  in  Roman  letters,  viz:  BROWN,  Green 
Bay;  CALUMKT,  ;  CHIPPEWA,  ;  COLUMBIA,  Columbus;  CRAW- 
FORD,  ;  DANK,  Madison;  DODGE,  Oak  Grove;  FOND  Du  LAC,  Fond  du 

Lac ;    GRANT,  ;   GREENE,  Monroe;    IOWA,  Mineral  Point;  JEFFERSON, 

Jefferson;  LAPOI.NT, ;  MANITOWOC, ;  MARQUETTE,  — }  MIL- 
WAUKEE. Milwaukee;  PORTAGE, ;  RACINE,  Racine ;  HIGHLAND,———; 

ROCK,  Janesville;  SHEBOYGAN,  Sheboygan;  ST.   CHOIX,   ;  SACK,  Prairie 

duSac;  WALWORTH,  Elk  Horn;  WASHINGTON,  Grafton;  WAUKESHA,  Prairie- 
ville;  WINNEBAGO,  .  The  counties  of  CRAWFORD,  HIGHLAND  and  LA- 
POINT  are  attached  at  present  to  GRANT  ;  the  counties  of  WINNEBAGO  and  CALUMET 
to  FOND  Du  LAC. 

17 


362  DEVISES  IN 

presence,  and  by  his  or  her  direction.  No  prescription  exists 
concerning  the  form  of  wills  of  real  estate,  wherefore  the 
general  rule  on  that  subject  prevails.  They  must  be  legible, 
intelligible,  and  clearly  indicative  of  the  purpose  of  the  tes- 
tator, in  respect  to  the  disposition  to  be  made  of  his  real  es- 
tate, after  his  decease.  They  must  not  create  trusts  unknown 
to,  or  prohibited  by  law,  or  suspend  the  power  of  alienation 
for  a  period  longer  than  shall  be  warranted  by  the  statutes. 
They  must  be  signed — signed  by  the  testator,  or  testatrix, 
or  by  some  one  for  him  or  her,  in  his  or  her  presence,  and 
by  his  or  her  direction.  The  signature  should  be  the  wri- 
ting of  his  or  her  name  at  length,  at  the  bottom  of  the  instru- 
ment; but  if  the  testator  or  testatrix  be  unable  to  write  his  or 
her  name,  he  or  she  may  make  his  or  her  mark  thereto,  in  such 
form  as  he  or  she  has  been  accustomed  to  do,  or  as  he  or  she 
shall  choose  to  adopt  for  a  signature. 

They  must  be  attested.  Not  only  do  the  statutes  require 
wills  to  be  in  writing,  and  signed  by  the  testator  or  testatrix, 
as  the  case  may  be,  or  by  some  one  for  him  or  her,  in  his  or 
her  presence,  and  by  his  or  her  direction;  but  that  such 
signing  shall  be  attested  by  three  or  more  credible  witnesses, 
who  shall  subscribe  their  names  thereto,  in  the  presence  of 
the  testator  or  testatrix,  as  subscribing  witnesses.  The  wit- 
nesses should  be  persons  who  are  competent  to  understand 
the  nature  of  the  act  performed,  and  whether  the  testator  or 
testatrix,  at  the  time  of  executing  the  will,  possesses  a  sound 
mind  and  memory,  and  whether  the  will  is  the  free  and  vol- 
untary act  of  the  person  executing  it.  They  should  be  also 
legally  competent  to  testify  of  the  facts,  in  the  Probate  Court, 
before  which  the  will  is  required  to  be  proved. 

Wills  may  be  altered  or  revoked  by  a  codicil  or  writing, 
executed  and  attested  in  the  same  manner  as  wills  are 
required  to  be  executed  and  attested ;  or  by  burning,  tear- 
ing, cancelling}  or  obliterating  the  same  by  the  testator 


WISCONSIN.  363 

or  testatrix,  or  by  some  other  person  in  his  or  her  pres- 
ence, and  by  his  or  her  direction.     [Stat.  Wis.  T.,  296.] 

For  other  regulations  concerning  the  execution  of  wills  of 
real  estate,  see  ante,  314. 

X.     THE    PROBATE    OP    WILLS    IN    WISCONSIN. 

By  the  Session  Laws  of  Wisconsin,  passed  in  1843,  it  was 
provided,  that  there  shall  be  elected  in  each  of  the  counties 
organized  for  judicial  purposes,  and  the  counties  attached  to 
them  for  judicial  purposes,  at  the  general  election  in  said 
counties  biennially,  commencing  in  1844,  a  Judge  of  Probate, 
whose  term  of  service  shall  commence  on  the  first  of  Janu- 
ary next  after  his  election. 

Such  Judge  is  invested  with  the  usual  powers  of  Probate 
Judges,  to  issue  all  necessary  process  to  witnesses,  and  to 
parties,  and  to  take  the  probate  of  wills,  and  to  record  the 
same  in  books,  to  be  provided  for  that  purpose,  and  to  issue 
letters  testamentary  or  of  administration  with  the  will  annex- 
ed, thereon.  [Stat.  Wis.  T.,  206.] 

As  these  statutes  are  about  to  undergo  a  revision,  any 
further  mention  of  them  is  omitted.* 

XI.  THE  LEVY  AND  COLLECTION  OP  LAND  TAXES  IN 
WISCONSIN. 

That  the  reader  may  apprehend  the  method  adopted  in 
Wisconsin  for  the  imposition  and  collection  of  taxes,  with- 
out a  recital  of  all  the  enactments  bearing  upon  that  subject, 
it  is  necessary  to  observe  that  some  counties  are  only  "  organ- 

*  The  statute  of  descents  in  Wisconsin  is  substantially  the  same  as  in  the  State 
of  Michigan,  as  maybe  seen  ante  322.  Both  were  grounded  on  the  ordinance  of 
1787,  and  do  not  vary  essentially  from  the  regulations  in  that  behalf,  contained  in 
that  instrument.  As  Wisconsin  is  about  entering  upon  the  condition  of  a  sovereign 
State,  it  is  believed  that  her  Legislature  will  cause  a  revision  of  her  laws,  moat  of 
which  are  ambiguous  or  imperfect. 

If  this  volume  meet  with  such  favor  as  to  warrant  a  further  publication,  the  fie- 
vised  Statutes  may  be  looked  for  in  a  future  edition. 


364  LEVY  AND  COLLECTION  OF  LAND  TAXES  IN 

ized  counties,"  whilst  others  are  "organized  counties  for 
town  government" — that  the  supervisory  power  in  the  former 
is  conferred  upon  a  Board  of  County  Commissioners,  and  in 
the  latter,  upon  a  Board  of  Supervisors,  one  of  whom  is  elect- 
ed in  each  town. 

Such  Boards,  wherever  they  exist,  respectively,  are  invest- 
ed with  the  power  to  audit  the  public  accounts  in  their  coun- 
ties, and  to  determine  the  amount  of  taxes  to  be  levied. 

The  statute  provides  that  "  it  shall  be  the  duty  of  County 
Assessors  of  the  several  counties  which  have  not  adopted  the 
provisions  of  an  act  to  provide  for  the  government  of  the 
several  towns  in  this  territory,  and  for  the  revision  of  county 
government,  and  of  town  Assessors  of  the  several  towns  in 
those  counties  which  have  adopted  the  provisions  of  the  said 
act,  to  assess  all  lands,  town  lots,  and  out  lots,  at  their  cash 
value,  which  are  not  exempt  from  taxation  by  the  laws  of  the 
United  States,  or  this  territory,  not  including  any  improve- 
ments made  thereon,  in  building  or  otherwise,  but  including- 
all  merchandize  and  stock  actually  paid  in  any  incorporated 
company,  separately  from  other  property,  and  to  enter  the 
valuation  of  the  same  separately  on  their  assessment  rolls." 
[Sess  Laws  1845,  1,  Sec.  1,] 

It  is  the  duty  of  Assessors,  after  completing  their  assess- 
ment rolls  of  the  property  in  their  districts  or  towns,  to  re- 
turn the  same,  so  that  they  may  come  before,  and  be  consid- 
ered by,  the  Board  of  Commissioners,  or  Supervisors,  as  the 
case  may  be,  to  the  end  that  a  tax  may  be  determined. 

In  cases  where  the  county  is  organized  only,  "the  Com- 
missioners shall,  at  their  regular  session,  in  July,  or  as  soon 
thereafter  as  the  assessment  roll  is  filed,  levy  a  per  centage 
on  the  real  estate  and  personal  property  (not  exempt)  suf- 
ficient, when  added  to  the  amount  that  will  probably  be  re- 
ceived by  the  county  from  other  sources  of  revenue,  to  de- 
fray the  current  expenses  of  such  county,  and  to  liquidate  its 
debts  for  the  year."  [Stat.  Wis.  T,,  44,  Sec.  2.] 


WISCONSIN.  365 

Whereupon  the  Clerk  of  the  Board  of  County  Commission- 
ers of  each  county  so  organized,  is  required  to  calculate  and 
to  carry  out  the  amount  of  taxes  upon  the  roll,  including  the 
territorial  tax  to  be  raised,  and  deliver  the  same  to  the  County 
Treasurer,  and  to  deliver  a  duplicate  thereof,  with  a  warrant, 
under  the  seal  of  the  Board,  to  the  Collector  of  the  county,  com- 
manding him  to  collect  all  the  taxes  charged  in  such  transcript, 
by  demanding  payment  of  the  persons  charged  therein  ;  and 
to  make  return  of  his  doings,  and  pay  over  the  money  by  him 
collected,  by  virtue  of  said  warrant,  to  said  Clerk,  on  or  be- 
fore the  first  day  of  January  next  ensuing  the  date  of  the 
precept.  [Id.,  47,  Sec.  13. 

All  persons  in  possession  of  any  land  charged  with  such 
tax  are  primarily  liable  to  pay  the  same ;  but  they  have  a 
remedy  over  against  the  owner,  or  other  person,  who  ought 
to  pay  the  said  taxes,  with  twenty  per  cent  damages.  [Id., 
Sec.  14.] 

If  such  taxes  are  not  paid  to  the  Collector  on  or  before  the 
first  Monday  of  November,  he  may  proceed  to  collect  the 
same  by  distress  and  sale  of  the  goods  and  chattels  of  the 
person  charged,  or  of  the  person  found  in  possession  of  the 
lands  or  town  lots  charged  with  such  unpaid  taxes,  giving  at 
least  six  days  notice  of  the  time  and  place  of  such  sale,  by 
written  notices,  posted  in  three  of  the  most  public  places  in 
said  county.  But  if  no  goods  nor  chattels  can  be  found, 
whereof  to  make  the  amount  of  such  taxes,  he  is  required  to 
give  notice  in  some  weekly  newspaper  published  in  his 
county,  or  if  no  such  newspaper  be  there  published,  then  in 
some  paper  published  in  the  county  nearest  thereto  ;  also,  by 
posting  up  four  written  notices,  one  on  the  court  house  door, 
and  the  others  in  three  of  the  most  public  places  in  said 
county,  for  four  weeks  preceding  the  second  Monday  in  De- 
cember next  thereafter,  notifying  all  whom  it  may  concern, 
that  he  will,  on  the  second  Monday  in  December  next  ensu- 
ing the  date  of  said  notice,  commence  selling,  at  the  court 


366  LEVY  AND  COLLECTION  OF  LAND  TAXES  IN 

house  door,  or  at  the  most  public  place  in  the  county,  the  said 
lands  on  which  the  taxes  due  are  not  paid  on  that  day,  and 
that  such  sale  will  be  continued  from  day  to  day,  between 
the  hours  of  nine  o'clock  in  the  forenoon  and  four  in  the  af- 
ternoon of  each  day,  until  all  are  offered  for  sale.  [Id.} 
Sec.  20.] 

At  which  time  it  is  his  duty  to  begin  the  sale  according  to 
the  terms  of  said  notice  ;  and  when  any  lots  or  tracts  of  land, 
or  any  part  thereof,  shall  be  sold  for  the  non-payment  of 
taxes  and  costs,  and  the  charges  thereon,  the  Collector  is  re- 
quired to  give  to  the  purchaser  a  certificate  in  writing,  de- 
scribing the  same  with  specific  certainty,  the  sum  paid  there- 
for, and  the  time  when  the  purchaser  will  be  entitled  to  a 
deed ;  which  certificate  is  by  statute  assignable,  and  trans- 
ferrable,  by  endorsement  on  the  same. 

Such  assignment  is  declared  to  have  the  same  force  and 
effect  as  the  assignment  of  other  bonds,  for  the  conveyance 
of  lands ;  and  if  the  owner  or  claimant  of  the  lot  or  tract  of 
land  described  in  such  certificate  shall  not,  within  three 
years  from  the  date  thereof,  pay  to  the  purchaser,  his  heirs 
and  assigns,  or  to  the  Clerk  of  the  Board  of  Commissioners 

O          / 

of  the  county  in  which  such  land  shall  be  situated,  for  the 
use  of  such  purchaser,  his  heirs  or  assigns,  the  sum  mention- 
ed in  such  certificate,  with  the  interest  thereon,  at  the  rate  of 
twenty-five  per  centum  per  annum,  with  such  other  taxes, 
costs  and  charges  thereon  as  may  have  accrued,  and  have 
been  paid  by  the  purchaser  or  his  assigns,  then  the  said  Col- 
lector, or  his  successor  in  office,  at  the  expiration  of  said 
three  years,  is  required  to  execute  to  said  purchaser,  his  heirs 
or  assigns,  a  conveyance  therefor ;  which  conveyance  is  de- 
clared to  vest  the  person  to  whom  it  shall  be  given,  with  an 
absolute  estate  in  fee  simple  thereof,  subject  to  the  claims  of 
the  county,  for  all  taxes,  costs  and  charges  accruing  subse- 
quent to  the  sale,  remaining  unpaid.  [Id.,  Sec.  23.  Also 
Sess.  Laws  1844,  22,  Sec.  11.] 


WISCONSIN.  367 

,  But  where  a  county  has  been  organized  for  town  purposes, 
and  has  a  Board  of  Supervisors,  it  is  provided  that  such 
Board  of  Supervisors  shall,  at  their  annual  meeting,  examine 
the  assessment  rolls  of  the  several  Town  Assessors,  (who  in 
such  cases  make  assessments,)  for  the  purpose  of  ascertain- 
ing whether  the  valuations  in  one  town  or  ward  bear  a  just 
relation  to  the  valuation  in  all  the  towns  and  wards  in  the 
county ;  and  after  equalizing  the  same,  a  copy  thereof,  to- 
gether with  a  statement  of  the  amount  to  be  raised  in  each 
town,  shall  be  delivered  to  the  Supervisors  respectively,  to  be 
by  him  delivered  or  transmitted  to  the  Clerk  of  his  town. 
[Stat.  Wis.  T.,  37,  Sec.  2. 

It  is  further  provided  that  "  it  shall  be  the  duty  of  the 
Town  Clerk,  on  the  reception  of  the  corrected  assessment 
roll,  and  the  amount  of  county  tax  to  be  paid  by  his  town, 
forthwith  to  calculate  and  carry  out  the  amount  of  taxes,  in- 
cluding town  arid  county  taxes,  in  an  additional  column,  for 
that  purpose  prepared  in  the  assessment  roll,  opposite  to  the 
several  sums  set  down  as  the  valuation  of  real  and  personal 
estate."  [Id.,  Sec.  3.] 

"Immediately  after  completing  such  assessment,  he  shall 
make  out  a  duplicate  or  transcript  of  the  same,  together  with 
a  precept,  in  the  name  of  the  Territory,  under  his  hand  and 
seal,  directed  to  the  Collector  of  the  town,  commanding  him 
to  collect  the  charges  contained  in  such  transcript,  by  de- 
manding payment  of  the  persons  charged  therein,  if  within 
his  town,  and  making  sale  of  their  goods  and  chattels,  ac- 
cording to  law ;  and  the  Town  Clerk  shall  in  like  manner 
require  of  the  Collector  to  pay  over  to  the  County  and  Town 
Treasurers  the  amount  by  him  so  collected  at  such  times, 
and  in  such  sums  as  shall  be  expressed  therein,  according  to 
law ;  and  to  make  return  of  such  transcript  and  precept,  with 
his  doings  thereon,  to  the  Town  Clerk,  on  or  before  the  first 
Monday  of  December  next  following."  [Id.,  Sec.  4.] 

Every  Collector,  upon  receiving  the  transcripts  and  pre- 


368      LEVY  AND  COLLECTION  OF  LAND  TAXES  IN 

cept  of  the  Town  Clerk,  shall  proceed  to  collect  the  taxes 
therein  mentioned,  according  to  the  command  of  the  precept." 
Id.,  39,  Sec.  1.] 

"If  no  goods  nor  chattels  can  be  found,  out  of  which  to 
make  the  taxes  charged  upon  any  lands  or  town  lots,  the 
Collector  shall,  on  or  before  the  first  day  in  December,  in 
each  year,  return  his  transcript  roll,  together  with  the  precept, 
and  his  doings  thereon,  to  the  Town  Clerk's  office.  The  re- 
turn shall  specify  all  lands  upon  which  the  taxes  are  unpaid, 
and  the  name  of  the  owner  thereof,  if  known."  [Id.,  Sec.  6.] 

"  Having  received  and  approved  the  Collector's  return,  as 
aforesaid,  the  Town  Clerk  shall,  before  the  first  day  of  Jan- 
uary, in  every  year,  make  out  and  forward  to  the  County 
Treasurer  a  certificate,  under  his  hand,  describing  the  de- 
linquent lands  and  town  lots,  and  the  taxes  thereon.  [Id.  40, 
Sec.  10.] 

After  the  several  Town  Clerks  in  each  county  so  organiz- 
ed have  forwarded  their  returns  of  unpaid  taxes,  as  above 
required,  and  shall  have  paid  over  such  as  shall  have  been 
collected  for  county  and  State  purposes,  it  is  the  duty  of  the 
County  Treasurer  to  give  notice  in  a  newspaper  published  in 
his  county,  if  any  there  be,  and  if  there  be  none,  then  in  a 
newspaper  published  at  the  seat  of  government ;  also  by 
posting  up  three  written  notices,  in  the  most  public  places  in 
such  county,  for  at  least  four  weeks  preceding  the  second 
Tuesday  in  April,  annually,  notifying  all  whom  it  may  con- 
cern, that  he  will,  on  the  second  Tuesday  next  ensuing  such 
notice,  commence  selling  at  some  of  the  most  public  places  in 
the  county,  to  be  described  therein,  all  and  singular  the  lands 
and  town  lots  in  such  county,  on  which  the  taxes  due  for  the 
year  or  years  for  which  he  is  authorized  to  collect,  shall  not 
have  been  paid  at  the  day  of  such  sale  ;  and  that  such  sale 
will  be  continued  from  day  to  day,  between  the  hours  of  nine 
o'clock  in  the  forenoon  and  four  o'clock  in  the  afternoon  of 
each  day,  until  all  shall  be  offered  for  sale :  and  it  is  made 


WISCONSIN.  369 

the  duty  of  the  County  Treasurer  to  describe  in  one  of  his 
written  notices,  which  shall  be  posted  in  the  office  of  the 
Clerk  of  the  Board  of  Supervisors,  each  tract  of  land  intend- 
ed to  be  sold.  [Id.,  43,  Sec.  19.] 

On  the  day  and  at  the  place  mentioned  in  such  notice, 
(that  is,  the  second  Tuesday  in  April,)  the  County  Treasurer 
is  required  to  expose  to  public  sale  each  tract  on  which  the 
taxes  shall  remain  unpaid,  or  so  much  thereof  as  will  sell  for 
the  amount  due  and  chargeable  thereon.  The  manner  of  the 
division,  if  a  part  be  sold,  must  be  declared  by  the  Treasurer, 
at  the  time  of  such  sale  ;  and  such  sale  is  required  to  be  con- 
tinued from  day  to  day,  until  all  the  lands  returned  delin- 
quent shall  have  been  duly  offered.  [Id.,  Sec.  20.] 

When  any  lots  or  tracts  of  land,  or  parts  thereof,  shall  be 
sold  for  the  non-payment  of  taxes  and  the  costs  and  charges 
thereon,  it  is  the  duty  of  the  County  Treasurer  to  give  to  the 
purchaser  or  purchasers  a  certificate  in  writing,  describing 
the  same  with  specific  certainty,  the  sum  paid  therefor,  and 
the  time  when  the  purchaser  or  purchasers  will  be  entitled 
to  a  deed  therefor;  which  certificate  may  be  assigned  and 
transferred  by  endorsement ;  and  if  the  owner  or  claimant 
of  the  lot  or  tract  of  land  so  sold  shall  not,  within  three 
years  from  the  date  thereof,  pay  to  the  purchaser  or  pur- 
chasers, his  or  their  heirs,  or  assigns,  or  to  the  Clerk  of  the 
Board  of  Supervisors  of  his  county,  for  the  use  of  such  pur- 
chaser or  purchasers,  his  or  their  heirs,  or  assigns,  the  sums 
mentioned  in  such  certificate,  with  interest  thereon,  at  the 
rate  of  twenty-five  per  centum  per  annum,  together  with  such 
other  taxes,  costs  arid  charges  upon  the  lot  or  tract  of  land 
as  may  have  accrued  under  the  laws  of  this  Territory,  or 
been  paid  by  the  purchaser,  his  heirs  or  assigns,  vouchers  of 
payment  being  produced  to  such  Clerk  or  claimant. 

At  the  expiration  of  the  time  allowed  for  redemption,  it  is 
the  duty  of  the  said  Clerk,  or  his  successor  in  office,  to  execute 


370      LEVY  AND  COLLECTION  OF  LAND  TAXES  IN 

to  the  said  purchaser  or  purchasers,  his  or  their  heirs  or  as- 
signs, in  the  name  of  the  Territory  of  Wisconsin,  a  convey- 
ance of  the  lot  or  tract  of  land  so  sold  and  described  in  said 
certificate  ;  and  which  conveyance  is  declared  to  vest  in  the 
grantee  an  absolute  estate  in  fee  simple  of  the  land  conveyed, 
subject  to  the  claims  for  all  taxes,  costs,  and  charges,  that 
may  have  accrued  subsequent  to  the  sale.  And  every  such 
conveyance  executed  by  the  Clerk  of  the  Board  of  Supervi- 
sors, and  duly  acknowledged  before  any  officer  authorized 
to  take  acknowledgments  of  deeds,  may  be  recorded,  and 
have  like  force  and  effect  as  other  conveyances  acknowledged 
and  recorded.  [Sess.  Laws  1844,  22,  Sec,  11 ;  Id.,  44,  Sec. 
21.] 

It  is  provided  that  for  the  purpose  of  raising  a  territorial 
revenue,  there  shall  be  annually  levied  in  each  of  the  coun- 
ties of  the  territory,  by  the  proper  county  authorities,  upon 
the  property  subject  to  taxation  for  county  purposes  in  each 
county,  a  territorial  tax  equal  in  amount  to  a  sum  which 
would  be  raised  by  a  tax  of  one  and  a  half  mills  on  the  dol- 
lar, on  the  assessed  value  of  the  property ;  which  tax  is 
required  to  be  levied  and  embraced  in  the  tax  rolls,  and  col- 
lected and  paid  into  the  county  treasuries  in  the  same  manner 
as  county  taxes,  except  that  county  scrip  cannot  be  received 
for  the  same.  [Sess.  Laws  1845,  Sec.  2.] 

The  County  Treasurers  are  required  to  pay  over  the 
amount  of  the  territorial  tax  by  them  received  to  the  Treas- 
urer of  the  Territory,  and  take  his  receipt  therefor  ;  and  the 
Auditor  of  the  Territory,  upon  the  presentation  of  such  re- 
ceipts, is  required  to  credit  the  counties  respectively  with  the 
amount.  [Id.,  Sec.  4.] 

XII.     THE   REDEMPTION    OF    LANDS    SOLD    FOR    TAXES. 

Within  three  years  next  after  any  sale  of  land  for  delin- 
quent and  unpaid  tuxes  assessed  thereon,  the  owner  or  claim- 


WISCONSIN.  371 

ant  may  redeem  the  same.  [Sess.  Laws  1844,  22,  Sec.  ll.J 
Idiots,  femmes  covert,  and  insane  persons  owning  lands 
sold  for  taxes,  may  redeem  the  same  within  five  years  after 
the  sale  thereof,  in  the  manner  provided  in  other  cases. 
[Id.,  Sec.  24.]  And  whenever  the  land  of  minors  shall  be 
sold  for  taxes,  the  same  may  be  redeemed  within  one  year 
after  said  minor  attains  majority.  [Id.,  Sec.  25.] 

In  counties  where  the  Collector  shall  sell  land  for  delin- 
quent taxes,  the  method  provided  for  redemptions  is,  to  pay 
to  the  purchaser  or  purchasers,  his  or  their  heirs  or  assigns, 
or  to  the  Clerk  of  the  Board  of  County  Commissioners,  for 
the  use  of  such  purchaser  or  purchasers,  or  his  or  their  heirs  or 
assigns,  the  amount  of  the  bid  and  the  interest  thereon,  at  the 
rate  of  twenty-five  per  centum  per  annum,  together  with  such 
other  taxes,  costs,  and  charges  thereon,  as  may  have  accrued 
subsequent  to  the  sale.  When  the  sale  shall  be  made  by  the 
County  Treasurer,  the  owner  or  claimant  may  redeem  within 
three  years,  by  paying  the  amount  of  the  bid  and  interest,  at 
the  rate  of  twenty-five  per  centum  per  annum,  to  the  pur- 
chaser or  purchasers  his  or  their  heirs  or  assigns,  or  to  the 
Clerk  of  the  Board  of  Supervisors  for  his  or  their  benefit. 

XIII.    LIMITATION    OF    REAL    ACTIONS    IN    WISCONSIN. 

The  statutes  of  Wisconsin  provide  that  all  suits  for  the 
recovery  of  lands  shall  be  brought  within  twenty  years  after 
seizure  and  possession,  unless  the  person  or  persons  entitled 
to  bring  the  action  labor  under  some  legal  disability,  such 
as  imprisonment  for  crime  for  a  term  less  than  for  life,  in- 
fancy, insanity,  or  the  like;  and  where  any  such  legal  disa- 
bility exists  at  the  time  of  the  accruing  of  the  right,  or  where 
it  shall  happen  during  said  twenty  years,  the  right  of  action 
survives  for  the  period  of  ten  years  after  the  removal  of  such 
disability. 

But  this  provision  does  not  extend  to  land  sold  for  taxes. 


372  REAL  ESTATE  EXEMPTIONS  IN 

Claimants  in  such  cases  have  but  three  years  in  which  to 
bring  suit  for  the  recovery  of  such  lands.  Yet,  if  such  claim- 
ant be  a  lunatic,  infant,  imprisoned  for  a  term  less  than  for 
life,  or  a  femme  covert,  within  said  three  years,  the  statute 
does  not  run  during  the  existence  of  such  disability. 

All  actions  for  dower  are  required  to  be  brought  within 
twenty  years  after  the  accruing  of  the  right.* 

XIV.    REAL    ESTATE    EXEMPTIONS    IN   WISCONSIN. 

The  statutes  of  Wisconsin  do  not  protect  from  levy  and 
sale  on  execution,  any  real  estate,  or  property  of  the  nature 
of  real  estate,  of  a  debtor,  except  a  pew  in  a  church,  or  place 
of  public  worship,  and  grounds  used  and  occupied  as  burial 
places  and  tornbs.t 

*  All  actions  upon  contract  not  under  seal,  and  all  actions  upon  judgments,  in  a 
court  not  of  i-ecord,  are  required  to  be  brought  within  three  years  after  the  same 
shall  have  accrued  ;  all  actions  upon  other  contracts  and  judgments  are  required  to 
be  brought  within  twenty  years.  [Stat.  Wis.  T.,  261.] 

tThe  Constitution  adopted  in  Convention  in  December,  1846,  exempted  the 
property  of  married  women,  and  the  homestead,  to  the  extent  of  forty  acrea  of 
land,  from  levy  and  sale  on  execution.  But  as  the  same  remains  unratified  by  the 
people,  those  provisions  have  been  omitted. 

The  following  property  of  a  debtor  is  exempt  from  levy  and  sale  on  execution, 
viz :  All  spinning  wheels,  weaving  looms,  stoves  in  use  in  any  dwelling ;  the  family 
library,  not  exceeding  in  value  one  hundred  dollars  ;  the  family  bible,  pictures, 
school  books,  a  seat  or  pew  in  a  church  ;  ten  sheep,  with  their  fleeces  ;  the  cloth  and 
yarn  manufactured  from  the  same ;  one  cow,  live  swine,  and  necessary  food  for 
them ;  all  pork,  beef,  fish,  flour  and  vegetables,  actually  provided  for  family  use,  and 
necessary  for  six  months  support ;  fuel  for  one  year,  all  wearing  apparel ;  beds, 
bedsteads  and  bedding  for  the  family ;  necessary  cooking  utensils,  one  table,  six 
chairs,  six  knives  and  six  forks  ;  the  same  number  each  of  plates,  tea-cups,  saucers 
and  spoons  ;  one  sugar  dish,  milk. pot  and  tea-pot;  one  crane  and  appendages,  one 
pair  andirons,  shovel  and  tongs ;  other  household  furniture,  necessary  for  the  debtor 
and  family,  not  to  exceed  in  value  fifty  dollars ;  the  tools  of  any  mechanic,  not  to 
exceed  in  value  one  hundred  dollars;  all  utensils  for  carrying  on  a  farm,  where  the 

debtor  is  a  farmer,  not  exceeding  in  value dollars  ;  one  horse,  worth  not 

over  forty  dollars,  or  one  yoke  of  oxen,  worth  not  more  than  sixty  dollars;  the  mili- 
tai'y  uniform  of  any  militia  man,  and  his  arms  and  accoutrements;  all  rights  of 
burial  and  tombs,  used  as  repositories  of  the  dead  ;  the  libraries  of  lawyers,  phy- 
sicians, and  clergymen,  and  surgical  instruments,  not  exceeding  in  value  two  hun- 
dred dollars.  [Statement  furnished  by  G.  W.  F.,  Esq.,  of  Port  Washington.] 


WISCONSIN.  373 


XV.  THE  INTEREST  OF  MONEY  AND  USURY  IN  WIS- 
CONSIN. 

The  statutes  of  Wisconsin  provide  that  the  rate  of  interest 
upon  the  loan  or  forbearance  of  any  money,  goods,  or  things 
in  action,  for  one  year,  shall  not  exceed  twelve  per  centum 
per  annum.  Yet,  not  exceeding  seven  per  cent  will  be  al- 
lowed, unless  a  greater  rate,  not  exceeding  twelve  per  cent, 
shall  be  agreed  upon  by  the  parties,  at  the  time  of  the  making 
of  the  loan.  In  all  cases  where  the  rate  shall  not  be  agreed 
upon,  it  shall  be  reckoned  at  seven  per  cent. 

Banking  houses  and  corporations  are  not  allowed  to  re- 
ceive over  seven  per  cent,  nor  may  a  rate  exceeding  seven 
per  cent  be  charged  upon  any  simple  contract  debt,  or  ac- 
count, where  no  agreement,  as  to  the  interest,  exists. 

Wherever  a  greater  rate  of  interest  shall,  in  any  contract, 
agreement,  bond,  note,  or  other  obligation,  be  reserved  or 
taken,  than  is  allowed  by  law,  the  usurious  contract,  agree- 
ment, bond,  note,  or  other  obligation,  is  not  thereby  void, 
except  for  the  usury.  Yet  the  usurer  thereby  forfeits  to  the 
person  paying  the  usury,  three  times  the  amount  of  the  usury 
paid.  A  suit  for  the  recovery  thereof,  however,  is  required 
to  be  brought  within  one  year  after  such  payment.  [Stat. 
Wis.,  56.] 


e  Constitution  adopted  in  Convention  in  December,  1846,  has  been  re» 
jccted  by  the  people,  leaving  Wisconsin  in  a  ''transition  state,"  in  respect  to  her 
organization.  She  was,  at  the  head  of  this  chapter,  termed  a  State  ;  yet,  whilst 
without  a  Constitution,  she  remains  for  all  practical  purposes,  a  territory.  It  is 
believed,  however,  that  the  people  will  call  another  Convention,  which  will  follow 
the  public  sentiment,  as  the  same  has  been  expressed,  in  framing  an  organic  law 
that  will  enable  Wisconsin  to  perfect  its  State  organization. 


374  THE  STATE  OF 


THE  STATE  OF  IOWA, 


As  a  documentary  history  of  land  titles  in  this  State  would  swell  the  size  and  aug- 
ment the  cost  of  this  volume  beyond  the  limits  designed,  it  has  been  reserved  for 
another  volume. 

Iowa  is  a  portion  of  the  Louisiana  purchase,  and  was  embraced  within  the  ces- 
sion of  St.  Ildefonso,  In  1756,  the  French  were  in  the  undisputed  possession  of 
Louisiana,  lying  on  both  sides  of  the  Mississippi,  about  its  mouth,  and  embracing  an 
immense  region  on  the  western  branch  of  its  upper  waters.  At  that  time  Spain  was 
in  the  possession  of  Florida,  the  two  provinces  being  separated  by  the  Perdido 
river. 

On  the  10th  of  February,  1763,  France  ceded  to  Great  Britain  the  river  and  port 
of  Mobile,  and  all  her  possessions  on  the  left  side  of  the  Mississippi,  except  the  town 
of  New-Orleans,  and  to  Spain  the  residue  shortly  after.  On  the  first  of  October, 
1801,  a  secret  treaty  was  concluded  between  France  and  Spain,  at  St.  Ildefonso, 
the  third  article  of  which  is  in  these  words:  "His  Catholic  Majesty  promises  and 
engages  on  his  part  to  retrocede  to  the  French  Republic,  six  months  after  the  full 
and  entire  execution  of  the  conditions  and  stipulations  relative  to  his  Royal  High- 
ness the  Duke  of  Parma,  the  colony  or  province  of  Louisiana,  with  the  same  extent 
that  it  now  has  in  the  hands  of  Spain,  and  that  it  had  when  France  possessed  it,  and 
such  as  it  should  be  after  the  treaties  subsequently  entered  into  between  Spain  and 
the  other  States." 

On  the  30th  of  April,  1803,  the  United  States  acquired  Louisiana  from  France. 
The  treaty,  after  reciting  the  above  third  article  of  that  of  St.  Ildefonso,  proceeds 
to  state  "that  the  first  Consul  of  the  French  Republic  doth  hereby  cede  to  the  United 
States,  in  the  name  of  the  French  Republic,  forever,  and  in  full  sovereignty,  the 
said  Territory,  with  all  its  rights  and  appurtenances,  as  fully  and  in  the  same  man- 
ner as  they  have  been  acquired  by  the  French  Republic,  in  virtue  of  the  above  men- 
tioned treaty,  concluded  with  his  Catholic  Majesty."  The  fourth  article  stipulates 
"  that  there  shall  be  sent  by  the  government  of  France,  a  Commissary  to  Louisiana; 
to  the  end  that  he  may  do  every  act  necessary,  as  well  to  receive  from  the  officers 
of  his  Catholic  Majesty,  the  said  country  and  its  dependencies,  in  the  name  of 


IOWA.  375 

the  French  Republic,  if  it  has  not  been  already  done,  so  as  to  transmit  it  in  the 
name  of  the  French  Republic,  to  the  Commissary  or  Agent  of  the  United  States." 

On  the  30th  of  November,  1303,  the  powers  given  to  the  Commissioner  of  the 
French  Republic  were  by  him  presented  to  Don  Manuel  Salccdo,  the  Governor  of 
Louisiana,  and  to  the  Marquis  De  Casa  Calvo,  the  Spanish  Commissioner,  who  had 
powers  for  the  surrender,  dated  October  15,  1302,  at  Barcelona:  whereupon  the 
surrender  was  made  in  the  words  following  :  "  Don  Manuel  Salcedo,  and  the  Mar- 
quis De  Casa,  Calvo,  &c.,  put  fi-om  this  moment  the  snid  French  Commissioner, 
the  citizen  Lausatt,  in  possession  of  the  Colony  of  Louisiana  and  its  dependencies, 
as  also  of  the  town  and  island  of  New-Orleans,  in  the  same  extent  which  they  now 
have,  and  which  they  had  in  the  hands  of  France,  when  she  ceded  them  to  the 
royal  crown  of  Spain,  and  such  as  they  should  be  after  the  treaties  subsequently  en- 
tered into  between  the  States  of  his  Catholic  Majesty  and  those  of  other  powers." 

On  the  21st  of  October,  1803,  Congress  passed  an  act,  enabling  the  President  of 
the  United  States  to  take  possession  of  the  Territory  of  Louisiana,  as  ceded  -by 
France ;  in  pursuance  of  which  the  President  appointed  Commissioners,  to  whom 
Mons.  Lausatt,  for  his  Republic,  on  the  20th  of  December,  1803,  surrendered  the 
aforesaid  Territory,  in  general  terms.  [Ch.  .1.  Marshall;  3  Peters,  302.] 

It  will  be  seen,  therefore,  that  the  United  States  became  vested  with  a  title  to 
the  lands  embraced  in  the  treaty  aforesaid,  subject  to  the  Indian  right  of  occupancy. 
For  a  long  time,  that  part  of  Louisiana  comprehended  within  the  limits  of  Iowa, 
remained  in  the  possession  of  the  natives ;  yet  upon  the  establishment  of  the"  terri- 
torial government  of  Wisconsin,  its  legis  was  extended  over  this  domain,  and  the 
same  was  gathered  in,  as  a  portion  of  Wisconsin.  [U.  S.  Star.,  by  Peters,  vol. 
5,  10.] 

But  in  1838,  its  settlers,  on  the  western  shores  of  the  Mississippi,  demanded  a 
government  of  their  own,  independently  of  their  eastern  neighbors  :  whereupon  an 
act  was  passed,  dividing  the  Territory  of  Wisconsin,  and  establishing  the  territorial 
government  of  Iowa. 

On  the  3d  of  March,  1845,  Congress  passed  an  act  for  the  admission  of  Iowa 
into  the  Union,  with  a  Constitution,  which  may  be  found  in  the  Appendix. 

The  statutes  of  Iowa  in  general  were  framed  after  those  of  Michigan,  to  which, 
with  Wisconsin  she  was  formerly  attached.  In  respect  to  the  estates  in  or  convey- 
ances of  land  in  Iowa,  the  statutes  in  Michigan  may  be  safely  followed,  although 
two  attesting  witnesses  are  not  now  required.  They  are  required  to  be  recorded 
in  the  office  of  Recorders,  who  are  obliged  to  keep  an  office  at  the  county  seat  of 
their  respective  counties,  and  to  record  all  conveyances  at  length. 

Wills  require  three  attesting  witnesses,  and  cannot  legally  suspend  alienation  be- 
yond two  lives.  A  Probate  Court,  having  ample  jurisdiction  over  testamentary  and 
intestate  estates,  exists  in  every  county. 

Taxes  are  levied  by  County  Commissioners,  and  warrants  for  their  collection  are 
issued  to  Collectors,  who  make  the  amount  from  personal  estate,  if  possible,  and  in 


37*6  THE  STATE  OF  IOWA. 

default  of  personal,  they  sell  real  estate.  All  land  sold  for  taxes  may,  howev- 
er, be  redeemed  by  the  owners  or  their  heirs,  within  two  years  after  the  sale,  by 
paying  the  amount  of  the  bid,  subsequent  taxes,  and  fifty  per  cent  interest  thereon. 
Concerning  the  interest  of  money,  it  is  provided  that  but  six  per  cent  can  be 
charged  0:1  demand?,  where  no  greater  rate  has  been  agreed  upon;  but  ten  percent 
may  be  stipulated  for.  in  any  note  or  agreement.  There  is  no  penalty  nor  punish- 
ment for  usury ;  yet  any  excess  over  ten  per  cent  paid,  may  be  recovered  back, 
provided  suit  therefor  be  brought  within  one  year.  [G.  W.  Fitch,  Esq.,  of 
Bloomington.] 


'-  '£ 

APPENDIX. 

CONSTITUTION 

OK 

THE   STATE   OF  NEW-YORK. 

ADOPTED  NOVEMBER  3,  1346. 


WE,  THB  PEOPLE  of  the  State  of  New-York,  grateful  to  Almighty  God  for  our 
freedom:  in  order  to  secure  its  blessings,  do  establish  this  Constitution:  N 

ARTICLE  I. 

SECTIOX  I.  No  member  of  this  State  shall  be  disfranchised,  or  depiived  of  any 
of  the  rights  or  privileges  secured  to  any  citizen  thereof,  unless  by  the  law  of  the 
land,  or  the  judgment  of  his  peers. 

SEC.  II.  The  trial  by  jury,  in  all  cases  in  which  it  has  been  heretofore  used, 
s»hall  remain  inviolate  forever.  But  n  jury  trial  may  be  waived  by  the  parties  in  all 
civil  cases,  in  the  manner  to  be  prescribed  by  law. 

SEC.  III.  The  free  exercise  and  enjoyment  of  religious  profession  and  worship, 
without  discrimination  or  preference,  shall  forever  be  allowed  in  this  State  to  all 
mankind ;  and  no  person  shall  -be  rendered  incompetent  to  be  a  witness  on  account 
of  his  opinions  on  matters  of  religious  belief;  but  the  liberty  of  conscience  hereby 
secured,  shall  not  be  so  construed  as  to  excuse  acts  of  licentiousness,  or  justify  prac- 
tices inconsistent  with  the  peace  or  safety  of  this  State. 

SEC.  IV.  The  privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended  un- 
less when,  in  cases  of  rebellion  or  invasion,  the  public  safety  may  require  its  BUS 
pension. 

SEC.  V.  Excessive  bail  shall  not  be  required,  nor  excessive  fines  imposed,  nor 
shall  cruel  and  unusual  punishments  be  inflicted,  nor  shall  witnesses  be  unreasona- 
bly detained. 

SEC.  VI.  No  person  shall  be  held  to  answer  for  a  capital  or  otherwise  infamous 
crime,  (except  in  cases  of  impeachment,  and  in  cases  of  the  militia,  when  in  actual 
service ;  and  the  land  and  naval  forces  in  time  of  war,  or  which  this  State  may  keep 
with  the  consent  of  Congress,  in  time  of  peace  ;  and  in  cases  of  petit  larceny,  under 

17* 


378  CONSTITUTION  OF 

the  regulation  of  the  Legislature,)  unless  on  presentment  or  indictment  of  a  grand 
jury ;  and  in  any  trial  in  any  court  whatever,  the  party  accused  shall  be  allowed  to 
appear  and  defend  in  person  and  with  counsel,  as  in  civil  actions.  No  person  shall 
be  subject  to  be  twice  put  in  jeopardy  for  the  same  offense  ;  nor  shall  he  be  com- 
pelled, in  any  criminal  case,  to  be  a  witness  against  himself;  nor  be  deprived  of 
life,  liberty,  or  property,  without  due  process  of  law  ;  nor  shall  private  property  be 
taken  for  public  use,  without  just  compensation. 

SEC.  VII.  "When  private  property  shall  be  taken  for  any  public  use,  the  compen- 
sation to  be  made  therefor,  when  such  compensation  is  not  made  by  the  State,  shaft 
be  ascertained  by  a  jury,  or  by  not  less  than  three  Commissioners,  appointed  by  a 
Court  of  Record,  as  shall  be  prescribed  by  law.  Private  roads  may  be  opened  in 
the  manner  to  be  prescribed  by  law;  but  in  every  case  the  necessity  of  the  road, 
and  the  amount  of  all  damage  to  be  sustained  by  the  opening  thereof,  shall  be  first 
determined  by  a  jury  of  freeholders,  and  such  amount,  together  with  the  expenso.s 
of  the  proceeding,  shall  be  paid  by  the  person  to  be  benefitted. 

SEC.  VIII.  Every  citizen  may  freely  speak,  write,  and  publish  his  sentiments  on  all 
subjects,  being  responsible  for  the  abuse  of  that  right ;  and  no  law  shall  be  passed 
to  restrain  or  abridge  the  liberty  of  speech,  or  of  the  press.  In  all  criminal  prose- 
cutions or  indictments  for  libels,  the  truth  may  be  given  in  evidence  to  the  jury  ;  and 
if  it  shall  appear  to  the  jury,  that  the  matter  charged  as  libellous  is  true,  and  was 
published  with  good  motives,  and  for  justifiable  ends,  the  party  shall  be  be  acquit- 
ted ;  and  the  jury  shall  have  the  right  to  determine  the  law  and  the  fact. 

SEC.  IX.  The  assent  of  two-thirds  of  the  members  elected  to  each  branch  of  the 
Legislature,  shall  be  requisite  to  every  bill  appropriating  the  public  moneys  or  pro- 
perty for  local  or  private  purposes. 

SEC.  X.  No  law  shall  be  passed,  abridging  the  right  of  the  people  peaceably  to 
assemble  and  to  petition  the  government,  or  any  department  thereof,  nor  shall  ,,  v 
divorce  be  granted,  otherwise  than  by  due  judicial  proceedings,  nor  shall  any  lot- 
tery hereafter  be  authorized,  or  any  sale  of  lottery  tickets  allowed  within  this  Stato 

SEC.  XI.  The  People  of  this  State,  in  their  right  of  sovereignty,  are  deemed  to 
possess  the  original  and  ultimate  property  in  and  to  all  lands  within  the  jurisdiction 
of  the  State;  and  all  lands,  the  title  to  which  shall  fail  from  a  defect  of  heirs,  shall 
revert,  or  escheat,  to  the  people. 

SEC.  XII.  All  feudal  tenures  of  every  description,  with  all  their  incidents,  are 
declared  to  be  abolished,  saving,  however,  all  rents  and  services  certain  which  at 
any  time  heretofore  have  been  lawfully  created  or  reserved. 

SEC.  XIII.  All  lands  within  this  State  are  declared  to  be  allodial,  so  that,  sub- 
ject only  to  the  liability  to  escheat,  the  entire  and  absolute  property  i*  vested  in  the 
owners  according  to  the  nature  of  their  respective  estates. 

SEC.  XIV.  No  lease  or  grant  of  agricultural  land,  for  a  longer  period  than  twelve 
years,  hereafter  made,  in  which  shall  be  reserved  any  rent  or  service  of  any  kind, 
shall  be  valid. 

SEC.  XV.  All  fines,  quarter  sales,  or  other  like  restraints  upon  alienation,  re- 
served in  any  grant  of  land,  hereafter  to  be  made,  shall  be  void. 


NEW-YORK.  379 

SEC.  XVI.  No  purchase  or  contract  for  the  sale  of  lands  in  this  State,  made 
since  the  fourteenth  day  of  October,  one  thousand  seven  hundred  and  seventy-five  ; 
or  which  may  hereafter  be  made,  of,  or  with  the  Indians,  shall  be  valid,  unless  made 
under  the  authority  and  with  the  consent  of  the  Legislature. 

SEC.  XVII.  Such  parts  of  the  common  law,  and  of  the  acts  of  the  Legislature  of 
the  Colony  of  New-York,  as  together  did  form  the  law  of  the  said  Colony,  on  the 
nineteenth  day  of  April,  one  thousand  seven  hundred  and  seventy-five,  and  the  res- 
olutions of  the  Congress  of  the  said  Colony,  and  of  the  Convention  of  the  .State  of 
New-York,  in  force  on  the  twentieth  day  of  April,  one  thousand  seven  hundred  and 
seventy-seven,  which  have  not  since  expired,  or  been  repealed  or  altered  ;  and  such 
acts  of  the  Legislature  of  this  State  as  arc  now  in  force,  shall  be  and  continue  the 
law  of  this  State,  subject  to  such  alterations  as  the  Legislature  shall  make  concern- 
ing the  same.  But  all  surh  part's  of  the  common  law,  and  such  of  the  said  act-*,  or 
parN  thereof,  as  are  repugnant  to  this  Constitution,  are  hereby  abrogated;  and  the 
Legislature,  at  its  first  session  after  the  adoption  of  this  Constitution,  shall  appoint 
three  Commissioners,  whose  duty  it  shall  be  to  reduce  into  a  written  and  systematic 
code,  the  whole  body  of  the  law  of  this  State,  or  so  much  and  such  parts  thereof  as 
to  the  said  Commissioners  shall  seem  practicable  and  expedient.  And  the  said 
Commissioners  shall  specify  such  alterations  and  amendments  therein  as  they  shall 
deem  proper,  and  they  shall  at  all  times  make  reports  of  their  proceedings  to  the 
Legislature,  when  called  upon  to  do  so ;  and  the  Legislature  shall  pass  laws  regu- 
lating the  tenure  of  otlice,  the  tilling  of  vacancies  therein,  and  the  compensation  of 
the  said  Commissioners  ;  and  shall  also  provide  for  the  publication  of  the  said  code, 
prior  to  its  being  presented  to  the  Legislature  for  adoption. 

XVIII.  All  grants  of  land  within  this  Stale,  made  by  the  King  of  Great 
Britain,  or  persons  acting  uud-r  his  authority,  after  the  fourteenth  day  of  October, 
one  thousand  seven  hundred  and  seventy-five,  shall  be  null  and  void  :  but  nothing 
contained  in  this  Constitution  shall  affect  any  grants  of  land  within  this  State,  made 
by  the  authority  of  the  said  King,  or  his  predecessors,  or  shall  annul  any  charters  to 
bodies  politic  and  corporate,  by  him  or  them  made,  before  that  day ;  or  shall  affect 
«ny  such  grants  or  charters  since  made  by  this  State,  or  by  persons  acting  under  its 
luthority,  or  shall  impair  the  obligation  of  any  debts  contracted  by  this  State,  or  in- 
jividuals,  or  bodies  corporate,  or  any  other  rights  of  property,  or  any  suits,  actions, 
rights  of  action,  or  other  proceedings  in  courts  of  justice. 

ARTICLE  II. 

SECTION  1.  Every  male  citizen  of  the  age  of  twenty-one  years,  who  shall  have 
been  a  citizen  for  ten  days,  and  an  inhabitant  of  this  State  one  year  next  preceding 
any  election,  and  for  the  last  four  months  a  resident  of  the  county  where  he  may  of- 
fer his  vote,  shall  be  entitled  to  vote  at  such  election,  in  the  election  district  of  which 
he  shall  at  the  time  be  a  resident,  and  not  elsewhere,  for  all  officers  that  now  are  or 
hereafter  may  be  elective  by  the  people ;  but  such  citizen  shall  have  been  for  thirty 
days  next  preceding  the  election,  a  resident  of  the  district  from  which  the  officer  is 
to  be  chosen  for  whom  he  offers  his  vote.  But  no  man  of  color,  unless  he  shall 
have  been  for  three  years  a  citizen  of  this  State,  and  for  one  year  next  preceding 


380  CONSTITUTION  OF 

any  election  shall  have  been  seized  and  possessed  of  a  freehold  estate  of  the  value 
of  two  hundred  and  fifty  dollars,  over  and  above  all  debts  and  incumbrances  charged 
rhereon,  and  shall  have  been  actually  rated  and  paid  a  tax  thereon,  shall  be  entitled 
to  vote  at  such  election.  And  no  person  of  color  shall  be  subject  to  direct  taxation 
unless  he  shall  be  seized  and  possessed  of  such  real  estate  as  aforesaid. 

SEC.  II.  Laws  may  be  passed  excluding  from  the  right  of  suffrage  all  persons 
who  have  been  or  may  be  convicted  of  bribery,  of  larceny,  or  of  any  infamous  crime  ; 
and  for  depriving  every  person  who  shall  make,  or  become  directly  or  indirectly  in- 
terested in  any  bet  or  wager  depending  upon  the  result  of  any  election,  from  the 
right  to  vote  at  such  election. 

SKC.  III.  For  the  purpose  of  voting,  no  person  shall  be  deemed  to  have  gained 
or  lost  a  residence,  by  reason  of  his  presence  or  absence,  while  employed  in  the  ser- 
vice of  the  United  States ;  nor  while  engaged  in  the  navigation  of  the  waters  of 
this  State,  or  of  the  United  States,  or  of  the  high  seas ;  nor  while  a  student  of  any 
seminary  of  learning ;  nor  while  hept  at  any  alms  house,  or  other  asylum,  at  public 
expense  ;  nor  while  confined  in  any  public  prison. 

SKC.  IV.  Laws  shall  be  made  for  ascertaining  by  proper  proofs,  the  citizens  who 
shall  be  entitled  to  the  right  of  suffrage  hereby  established. 

SEC.  V.  All  elections  by  the  citizens  shall  be  by  ballot,  except  for  such  town 
officers  as  may  by  law  be  directed  to  be  otherwise  chosen. 

ARTICLE  III. 

SECTION  I.  The  Legislative  power  of  this  State  shall  be  vested  in  a  Senate  and 
Assembly. 

SEC.  II.  The  Senate  shall  consist  of  thirty-two  members,  and  the  Senators  shall 
be  chosen  for  two  years.  The  Assembly  shall  consist  of  one  hundred  and  twenty- 
eight  members,  who  shall  be  annually  elected. 

SEC.  III.  The  State  shall  be  divided  into  thirty-two  Districts,  to  be  called  Sen- 
ate Districts,  each  of  which  shall  choose  one  Senator.  The  Districts  shall  be  num. 
bered  from  one  to  thirty-two,  inclusive. 

District  number  one  shall  consist  of  the  counties  of  Suffolk,  Richmond,  and  Queens. 
District  number  two  shall  consist  of  the  county  of  Kings.  District  number  three, 
number  four,  number  five,  and  number  six,  shall  consist  of  the  city  and  county  of 
New-York ;  and  the  Board  of  Supervisors  of  said  city  and  county  shall,  on  or  before 
the  first  day  of  May,  one  thousand  eight  hundred  and  forty-seven,  divide  the  said 
rity  and  county  into  the  number  of  Senate  Districts  to  which  it  is  entitled,  as  near  as 
may  be,  of  an  equal  number  of  inhabitants,  excluding  aliens  and  persons  of  color  not 
taxed,  and  consisting  of  convenient  and  contiguous  territory  ;  and  no  Assembly  Dis- 
trict shall  be  divided  in  the  formation  of  a  Senate  District.  The  Board  of  Super- 
visors, when  they  shall  have  completed  such  division,  shall  cause  certificates  thereof, 
stating  the  number  and  boundaries  of  each  District  and  the  population  thereof,  to 
be  filed  in  the  office  of  the  Secretary  of  State,  and  of  the  Clerk  of  the  said  city  and 
county.  District  number  seven  shall  consist  of  the  counties  of  Westchester,  Put- 
nam, and  Rockland.  District  number  eight  shall  consist  of  the  counties  of  Dutch- 


NEW-YORK.  381 

ess  and  Columbia.  District  number  nine  shall  consist  of  the  counties  of  Orange  and 
Sullivan.  District  number  ten  shall  consist  of  the  counties  of  Ulster  and  Greene. 
District  number  eleven  shall  consist  of  the  counties  of  Albany  and  Schenectady. 
District  number  twelve  shall  consist  of  the  county  of  Rensselaer.  District  number 
thirteen  shall  consist  of  the  counties  of  Washington  and  Saratoga.  District  number 
fourteen  shall  consist  of  the  counties  of  Warren,  Essex,  and  Clinton.  District  num- 
ber fifteen  shall  consist  of  the  counties  of  St.  Lawrence  and  Franklin.  District  num- 
ber sixteen  shall  consist  of  the  counties  of  Herkimer,  Hamilton,  Fulton,  and  Mont- 
gomery. District  number  seventeen  shall  consist  of  the  counties  of  Schoharie  and 
Delaware.  District  number  eighteen  shall  consist  of  the  counties  of  Otsego,  and 
Chenango.  District  number  nineteen  shall  consist  of  the  county  of  Oneida.  Dis- 
trict number  twenty  shall  consist  of  the  counties  of  Madison  and  Oswego.  Distric* 
number  twenty-one  shall  consist  of  the  counties  of  Jefferson  and  Lewis.  District 
number  twenty-two  shall  consist  of  the  county  of  Onondaga.  District  number 
twenty-three  shall  consist  of  the  counties  of  Cortland,  Broome,  and  Tioga.  District 
number  twenty-four  shall  consist  of  the  counties  of  Cayuga  and  Wayne.  District 
number  twenty-live  shall  consist  of  the  counties  of  Tompkins,  Seneca,  and  Yates. 
District  number  twenty-six  shall  consist  of  the  counties  of  Steuben  and  Chemung. 
District  number  twenty-seven  shall  consist  of  the  county  of  Monroe.  District  num- 
ber twenty-eight  shall  consist  of  the  counties  of  Orleans,  Genesee,  and  Niagara. 
District  number  twenty-nine  shall  consist  of  the  counties  of  Ontario  and  Livingston. 
District  number  thirty  shall  consist  of  the  counties  of  Allegany  and  Wyoming. 
District  number  thirty-one  shall  consist  of  the  county  of  Erie.  District  number 
thirty-two  shall  consist  of  the  counties  of  Chautauque  and  Cattaraugus. 

Sic.  IV.  An  enumeration  of  the  inhabitants  of  the  State  shall  be  taken,  under  the 
direction  of  the  Legislature,  in  the  year  one  thousand  eight  hundred  and  fifty-five, 
and  at  the  end  of  every  ten  years  thereafter;  and  the  said  Districts  shall  be  so  alter- 
ed by  the  Legislature,  at  the  first  session  after  the  return  of  even' enumeration,  that 
"••  ^natc  District  shall  contain,  as  nearly  as  may  bo,  an  equal  number  of  inhab- 
itants, excluding  aliens,  and  persons  of  color  not  taxed  ;  and  shall  remain  unaltered 
until  the  return  of  another  enumeration,  and  shall  at  all  times  consist  of  contiguous 
territory;  and  no  county  shall  be  divided  in  the  formation  of  a  Senate  District,  ex- 
cept such  county  shall  be  equitably  entitled  to  two  or  more  Senators. 

SEC.  V.  The  members  of  Assembly  shall  be  apportioned  among  the  several 
counties  of  this  State,  by  the  Legislature,  as  nearly  as  may  be,  according  to  the 
dumber  of  their  respective  inhabitants,  excluding  aliens,  and  persons  of  color  not 
taxed,  and  shall  be  chosen  by  single  Districts. 

The  several  boards  of  supervisors  in  such  counties  of  this  State,  as  are  now  en- 
titled to  more  than  one  member  of  Assembly,  shall  assemble  on  the  first  Tuesday 
of  January  next,  and  divide  their  respective  counties  into  Assembly  Districts  equal 
to  the  number  of  members  of  Assembly  to  which  such  counties  are  now  severally 
entitled  by  law,  and  shall  cause  to  be  filed  in  the  offices  of  the  Secretary  of  State 
and  the  Clerks  of  their  respective  counties,  a  description  of  such  Assembly  Dis- 


382  CONSTITUTION  OF 

tricts,  specifying  the  number  of  each  District  and  the  population  thereof,  according 
to  the  last  preceding  State  enumei-ation,  as  near  as  can  bo  ascertained.  Each 
Assembly  District  shall  contain,  as  nearly  as  may  be,  an  equal  number  of  inhabit- 
ants, excluding  aliens  and  persons  of  color  not  taxed,  and  shall  consist  of  conveni- 
ent and  contiguous  territory ;  but  no  town  shall  be  divided  in  the  formation  of  As- 
sembly Districts. 

The  Legislature,  at  its  first  session  after  the  return  of  every  enumeration,  shall 
re-apportion  the  members  of  Assembly  among  the  several  counties  of  this  State,  in 
manner  aforesaid,  and  the  Boards  of  Supervisors  in  such  counties  as  may  be  enti- 
tled, under  such  re-apportionment,  to  more  than  one  member,  shall  assemble  at 
such  time  as  the  Legislature  making  such  re-apportionment  shall  prescribe,  and  di- 
vide such  counties  into  Assembly  Districts,  in  the  manner  herein  directed  ;  and  the 
apportionment  and  Districts  so  to  be  made,  shall  remain  unaltered  until  another 
enumeration  shall  be  taken  under  the  provisions  of  the  preceding  section. 

Every  county  heretofore  established  and  separately  organized,  except  the  county 
of  Hamilton,  shall  always  be  entitled  to  one  member  of  the  Assembly,  and  no  new 
county  shall  be  hereafter  erected,  unless  its  population  shall  entitle  it  to  a  member. 

The  county  of  Hamilton  shall  elect  with  the  county  of  Fulton,  until  the  popula- 
tion of  the  county  of  Hamilton  shall,  according  to  the  ratio,  be  entitled  to  a  mem- 
ber. 

SEC.  VI.  The  members  of  the  Legislature  shall  receive  for  their  services,  a  sum 
not  exceeding  three  dollars  a  day,  from  the  commencement  of  the  session  ;  but  such 
pay  shall  not  exceed  in  the  aggregate  three  hundred  dollars  for  per  diem  allowance, 
except  in  proceedings  for  impeachment.  The  limitation  as  to  the  aggregate  com- 
pensation, shall  not  take  effect  until  the  year  one  thousand  eight  hundred  and  forry- 
eight.  When  convened  in  extra  session  by  the  Governor,  they  shall  receive  three 
dollars  per  day.  They  shall  also  receive  the  sum  of  one  dollar  for  every  ten  miles 
they  shall  travel,  in  going  to  and  returning  from  their  place  of  meeting,  on  the  most 
usual  route.  The  Speaker  of  the  Assembly  shall,  in  virtue  of  his  office,  receive  an 
additional  compensation  equal  to  one  third  of  his  per  diem  allowance  as  a  member. 

SEC.  VII.  No  member  of  the  Legislature  shall  receive  any  civil  appointment  within 
this  State,  or  to  the  Senate  of  the  United  States,  from  the  Governor,  the  Governor 
and  Senate,  or  from  the  Legislature,  during  the  term  for  which  he  shall  have  been 
elected :  and  all  such  appointments,  and  all  votes  given  for  any  such  member,  for 
any  such  office  or  appointment,  shall  be  void. 

SEC.  VIII.  No  person  being  a  member  of  Congress,  or  holding  any  judicial  or  mil* 
tary  office  under  the  United  States,  shall  hold  a  seat  in  the  Legislature.  And  if 
any  person  shall,  after  his  election  as  a  member  of  the  Legislature,  be  elected  to 
Congress,  or  appointed  to  any  office,  civil  or  military,  under  the  government  of  the 
United  States,  his  acceptance  thereof  shall  vacate  his  seat. 

SEC.  IX.  The  elections  of  Senators  and  members  of  Assembly,  pursuant  to  the 
provisions  of  this  Constitution,  shall  be  held  on  the  Tuesday  succeeding  the  first 
Monday  of  November,  unless  otherwise  directed  by  the  Legislature. 


NEW-YORK.  283 

SEC.  X.  A  majority  of  each  house  shall  constitute  a  quorum  to  do  business. 
Each  house  shall  determine  the  rules  of  its  own  proceedings,  and  be  the  judge  of 
the  elections,  returns,  and  qualifications  of  its  own  members,  shall  choose  its  own 
officers ;  and  the  Senate  shall  choose  a  temporary  president,  when  the  Lieutenant 
Governor  shall  not  attend  as  president,  or  shnll  act  as  Governor. 

SEC.  XI.  Each  house  shall  keep  a  journal  of  its  proceedings,  and  publish  the 
same,  except  such  parts  as  may  require  secrecy.  The  doors  of  each  house  shall 
be  kept  open,  except  when  the  public  welfare  shall  require  socrecy.  Neither  house 
shall,  without  the  consent  of  the  other,  adjourn  for  more  than  two  days. 

SEC.  XII.  For  any  speech  or  debate  in  either  house  of  the  Legislature,  the 
members  shall  not  be  questioned  in  any  other  plan-. 

SKC.  XIII.  Any  bill  may  originate  in  either  home  of  the  Legislature,  and  all 
bills  passed  by  one  house  may  be  amended  by  the  other. 

SEC.  XIV.  The  enacting  clau-e  of  all  bills  shall  be  "  The  people  of  the  State 
of  New-York  represented  in  Senate  and  Assembly,  do  enact  as  follows,"  and  no 
law  shnll  bo  on;u-t<-d  except  by  bill. 

SEC.  XV.  No  bill  shall  be  passed  unless  by  the  assont  of  a  majority  of  the  mem- 
bers elected  to  each  branch  of  the  Legislature,  and  the  question  upon  the  final  pas- 
sage shall  bo  taken  immediately  on  its  last  reading,  and  the  yeas  and  nayd  entered 
on  the,  journal. 

SKC.  XVI.  No  private  or  local  bill  which  may  be  passed  by  the  Legislature, 
shall  embrace  more  than  one  subject,  and  that  shall  be  expressed  in  the  title. 

SKC.  XVII.  The  Legislature  mny  confer  upon  the  Boards  of  Supervisors  of  the 
several  counties  of  the  State,  such  further  powers  of  local  legislation  and  adminis- 
tration, as  they  shall  from  time  to  time  prescrilx>. 

ARTICLE   IV. 

SEC.  I.  The  executive  power  shall  be  vested  in  a  Governor,  who  shall  hold  hi» 
olTV-e  for  two  years:  a  Lieutenant-Governor  shall  be  chosen  at  the  same  time, 
and  for  the  same  term. 

SEC.  II.  No  person,  except  a  citi/.en  of  the  United  States,  shall  be  eligible  to 
the  office  of  Governor,  nor  shall  any  person  be  eligible  to  that  office,  who  shall  not 
have  attained  the  age  of  thirty  years,  and  who  shall  not  have  been  five  years 
next  preceding  his  election,  a  resident  within  this  State. 

SEC.  III.  The  Governor  and  Lieutenant  Governor  shall  be  elected  at  the  times 
and  places  of  choosing  members  of  the  Assembly.  The  persons  respectively  hav- 
ing the  highest  number  of  votes  for  Governor  and  Lieutenant-Governor,  shall  be 
elected  ;  but  in  case  two  or  more  have  an  equal  and  the  highest  number  of  votes 
'for  Governor,  or  for  Lieutenant-Governor,  the  two  houses  of  the  Legislature,  at  its 
next  annual  session,  shnll,  forthwith,  by  joint  ballot,  choose  one  of  the  said  persons 
so  having  an  equal  and  the  highest  number  of  votes  for  Governor,  or  Lieutenant 
Governor. 

SEC.  IV.    The  Governor  shall  be  comraander-in-chief  of  the  military  and  naval 


384  CONSTITUTION  OF 

forces  of  the  State.  He  shall  have  power  to  convene  the  Legislature  (or  the  Sen- 
ate only)  on  extraordinary  occasions.  He  shall  communicate  by  message  to  the 
Legislature  at  every  session,  the  condition  of  the  State,  and  recommend  such  mat- 
ters to  them  as  he  shall  judge  expedient.  He  shall  transact  all  necessary  business 
with  the  officers  of  government,  civil  and  military.  He  shall  expedite  all  such  meas- 
ures as  may  be  resolved  upon  by  the  Legislature,  and  shall  take  care  that  the  laws 
are  faithfully  executed.  He  shall,  at  stated  times,  receive  for  his  services  a  com- 
pensation to  be  established  by  law,  which  shall  neither  be  increased  nor  diminished 
after  his  election  and  during  his  continuance  in  office. 

SEC.  V.  The  Governor  shall  have  the  power  to  grant  reprieves,  commutations, 
and  pardons  after  conviction,  for  all  offences  except  treason  and  cases  of  impeach- 
ment, upon  such  conditions,  and  with  such  restrictions  and  limitations,  as  he  may 
think  proper,  subject  to  such  regulations  as  may  be  provided  by  law  relative  to  the 
manner  of  applying  for  pardons.  Upon  conviction  for  treason,  he  shall  have  power 
to  suspend  the  execution  of  the  sentence,  until  the  case  shall  be  reported  to  the 
Legislature  at  its  next  meeting,  when  the  Legislature  shall  either  pardon,  or  com- 
mute the  sentence,  direct  the  execution  of  the  sentence,  or  grant  a  further  reprieve. 
He  shall  annually  communicate  to  the  Legislature  each  case  of  reprieve,  commuta- 
tion or  pardon  granted ;  stating  the  name  of  the  convict,  the  crime  of  which  he 
was  convicted,  the  sentence  and  its  date,  and  the  date  of  the  commutation,  pardon 
or  reprieve. 

SKC.  VI.  In  case  of  the  impeachment  of  the  Governor,  or  his  removal  from 
office,  death,  inability  to  discharge  the  powers  and  duties  of  the  said  office,  resig-. 
nation,  or  absence  from  the  State,  the  powers  and  duties  of  the  office  shall  devolve 
upon  the  Lieutenant  Governor  for  the  residue  of  the  term,  or  until  the  disability 
shall  cease.  But  when  the  Governor  shall,  with  the  consent  of  the  Legislature,  be 
out  of  the  State  in  time  of  war,  at  the  head  of  a  military  force  thereof,  he  shall 
continue  commander-in-chief  of  all  the  military  force  of  the  State. 

SEC.  VII.  The  Lieutenant-Governor  shall  possess  the  same  qualifications  of  eligi- 
bility for  office  as  the  Governor.  He  shall  be  President  of  the  Senate,  but  shall 
only  have  a  casting  vote  therein.  If  during  a  vacancy  of  the  office  of  Governor, 
the  Lieutenant  Governor  shall  be  impeached,  displaced,  resign,  die,  or  become  in- 
capable of  performing  the  duties  of  his  office,  or  be  absent  from  the  State,  the 
President  of  the  Senate  shall  act  as  Governor,  until  the  vacancy  be  filled,  or  the 
disability  shall  cease. 

SEC.  VIII.  The  Lieutenant-Governor  shall,  while  acting  as  such,  receive  a  com- 
pensation which  shall  be  fixed  by  law,  and  which  shall  not  be  increased  or  dimin- 
ished during  his  continuance  in  office. 

SEC.  IX.  Every  bill  which  shall  have  passed  the  Senate  and  Assembly,  shall, 
before  it  becomes  a  law,  be  presented  to  the  Governor :  if  he  approve,  he  shall 
sign  it;  but  if  not,  he  shall  return  it  with  his  objections  to  that  house  in  which  it 
shall  have  originated ;  who  shall  enter  the  objections  at  large  on  their  journal  and 
prsoceed  to  reconsider  it.  If  after  such  reconsideration,  two-thirds  of  the  members 


NEW-YORK.  385 

present  shall  agree  to  pass  the  bill,  it  shall  be  sent,  together  with  the  objections,  to 
the  other  house,  by  which  it  shall  likewise  be  reconsidered ;  and  if  approved  by 
two-thirds  of  all  the  members  present  it  shall  become  a  law,  notwithstanding  the  ob- 
jections of  the  Governor.  But  in  all  such  cases,  the  votes  of  both  houses  shall  be 
determined  by  yeas  and  nays,  and  the  names  of  the  members  voting  for  and  against 
the  bill,  shall  be  entered  on  the  journal  of  each  house  respectively.  If  any  bill 
shall  not  be  returned  by  the  Governor  within  ten  days  (Sundays  excepted)  after  it 
shall  have  been  presented  to  him,  the  same  shall  be  a  law,  in  like  manner  as  if  he 
had  signed  it,  unless  the  Legislature  shall,  by  their  adjournment,  prevent  its  return  ; 
in  which  case  it  shall  not  be  a  law. 

ARTICLE  V. 

SEC.  I.  The  Secretary  of  State,  Comptroller,  Treasurer  and  Attorney-General, 
shall  be  chosen  at  a  general  election,  and  shall  hold  their  offices  for  two  years. 
Each  of  the  officers  in  this  Article  named  (except  the  Speaker  of  the  Assembly,) 
shall  at  stated  times,  during  his  continuance  iu  office,  receive  for  his  services,  a 
compensation,  which  shall  not  be  increased  or  diminished  during  the  term  for 
which  he  shall  have  been  elected  ;  nor  shall  he  receive,  to  his  use,  any  fees  or  per- 
quisites of  office,  or  other  compensation. 

SEC.  II.  A  State  Engineer  and  Surveyor  shall  be  chosen  at  a  general  election, 
and  shall  hold  his  office  two  years,  but  no  person  shall  be  elected  to  said  office  who 
is  not  a  practical  engineer. 

SEC.  III.  Three  Canal  Commissioners  shall  be  chosen  at  the  general  election 
which  shall  be  held  next  after  the  adoption  of  this  Constitution,  one  of  whom  shall 
hold  his  office  for  one  year,  one  for  two  years,  and  one  for  three  years.  The  Com- 
missioners of  the  Canal  Fund  shall  meet  at  the  Capitol  on  the  first  Monday  of  Jan- 
uary, next  after  such  election,  and  determine  by  lot  which  of  said  Commissioners 
shall  hold  his  office  for  one  year,  which  for  two,  and  which  for  three  years ;  and 
there  shall  be  elected  annually,  thereafter,  one  Canal  Commissioner,  who  shall  hold 
his  office  for  three  years. 

SEC.  IV.  Three  Inspectors  of  State  Prisons  shall  be  elected  at  the  general  elec- 
tion which  shall  be  held  next  after  the  adoption  of  this  Constitution,  one  of  whom 
shall  hold  his  office  for  one  year,  one  for  two  years,  and  one  for  three  years.  The 
Governor,  Secretary  of  State,  and  Comptroller,  shall  meet  at  the  Capitol  on  the  first 
Monday  of  January  next  succeeding  such  election,  and  determine  by  lot  which  of 
said  Inspectors  shall  hold  his  office  for  one  year,  which  for  two,  and  which  for  three> 
years  ;  and  there  shall  be  elected  annually  thereafter  one  Inspector  of  State  Prisons, 
who  shall  hold  his  office  for  three  years.  Said  Inspectors  shall  have  the  charge  and 
superintendence  of  the  State  Prisons,  and  shall  appoint  all  the  officers  therein.  All 
vacancies  in  the  office  of  such  Inspector  shall  be  filled  by  the  Governor,  till  the  next 
election. 

SEC.  V.  The  Lieutenant  Governor,  Speaker  of  the  Assembly,  Secretary  of  State, 
Comptroller,  Treasurer,  Attorney  General,  and  State  Engineer  and  Surveyor,  shall 
be  the  Commissioners  of  the  Land  Office. 

18 


386  CONSTITUTION  OF 

The  Lieutenant  Governor,  Secretary  of  State,  Comptroller,  Treasurer,  and  At- 
torney General,  shall  be  the  Commissioners  of  the  Canal  Fund. 

The  Canal  Board  shall  consist  of  the  Commissioners  of  the  Canal  Fund,  the 
State  Engineer  and  Surveyor,  and  the  Canal  Commissioners. 

SEC.  VI.  The  powers  and  duties  of  the  respective  boards,  and  of  the  several 
officers  in  this  article  mentioned,  shall  be  such  as  now  are,  or  hereafter  may  be  pre- 
scribed by  law. 

SEC.  VII.  The  Treasurer  may  be  suspended  from  office  by  the  Governor,  during 
the  recess  of  the  Legislature,  and  until  thirty  days  after  the  commencement  of  the 
next  session  of  the  Legislature,  whenever  it  shall  appear  to  him  that  such  Treasur- 
er has,  in  any  particular,  violated  his  duty.  The  Governor  shall  appoint  a  compe- 
tent person  to  discharge  the  duties  of  the  office,  during  such  suspension  of  the 
Treasurer. 

SEC.  VIII.  All  officers  for  the  weighing,  guaging,  measuring,  culling,  or  inspect- 
ing any  merchandize,  produce,  manufacture  or  commodity,  whatever,  are  hereby 
abolished,  and  no  such  office  shall  hereafter  be  created  by  law  ;  but  nothing  in  this 
section  contained,  shall  abrogate  any  office  created  for  the  purpose  of  protecting  the 
public  health  or  the  interests  of  the  State  in  its  property,  revenue,  tolls,  or  purchas- 
es, or  of  supplying  the  people  with  correct  standards  of  weights  and  measures,  or 
shall  prevent  the  creation  of  any  office  for  such  purpose  hereafter. 

ARTICLE  VI. 

SECTION  I.  The  Assembly  shall  have  the  power  of  impeachment,  by  the  vote  of  a 
majority  of  all  the  members  elected.  The  court  for  the  trial  of  impeachments  shall 
be  composed  of  the  President  of  the  Senate,  the  Senators,  or  a  major  part  of  them, 
and  the  Judges  of  the  Court  of  Appeals,  or  the  major  part  of  them.  On  the  trial  of 
an  impeachment  against  the  Governor,  the  Lieutenant  Governor  shall  not  act  as  a 
member  of  the  court.  No  judicial  officer  shall  exercise  his  office  after  he  shall  have 
been  impeached,  until  he  shall  have  been  acquitted.  Before  the  trial  of  an  impeach- 
ment, the  members  of  the  court  shall  take  an  oath  or  affirmation,  truly  and  impartial- 
ly to  try  the  impeachment,  according  to  evidence ;  and  no  person  shall  be  convicted, 
•without  the  concurrence  of  two-thirds  of  the  members  present.  Judgment  in  cases 
of  impeachment  shall  not  extend  further  than  to  removal  from  office,  or  removal  from 
office  and  disqualification  to  hold  and  enjoy  any  office  of  honor,  trust  or  profit  under 
this  State ;  but  the  party  impeached  shall  be  liable  to  indictment  and  punishment, 
according  to  law. 

SEC.  II.  There  shall  be  a  Court  of  Appeals,  composed  of  eight  Judges,  of  whom 
four  shall  be  elected  by  the  electors  of  the  State  for  eight  years,  and  four  selected 
from  the  class  of  the  Justices  of  the  Supreme  Court  having  the  shortest  time  to 
serve.  Provision  shall  be  made  by  law  for  designating  one  of  the  number  elected 
as  Chief  Judge,  and  for  selecting  such  Justices  of  the  Supreme  Court,  from  time  to 
time,  and  for  so  classifying  those  elected,  that  one  shall  be  elected  every  second 
year. 


NEW-YORK.  387 

SEC.  III.   There  shall  be  a  Supreme  Court,  having  general  jurisdiction  in  law 
and  equity. 

SEC.  IV.  The  State  shall  be  divided  into  eight  judicial  districts,  of  which  the 
city  of  New-York  shall  be  one ;  the  others  to  be  bounded  by  county  lines,  and  to  be 
compact  and  equal  in  population,  as  nearly  as  may  be.  There  shall  be  four  Justices 
of  the  Supreme  Court  in  each  district,  and  as  many  more  in  the  district  composed  of 
the  city  of  New-York,  as  may  from  time  to  time  be  authorized  by  law,  but  not  to  ex- 
ceed in  the  whole  such  number  in  proportion  to  its  population,  as  shall  be  in  con- 
formity with  the  number  of  such  Judges  in  the  residue  of  the  State,  in  proportion 
to  its  population.  They  shall  be  classified  so  that  one  of  the  Justices  of  each  dis- 
trict shall  go  out  of  office  at  the  end  of  every  two  years.  After  the  expiration  of 
their  terms  under  such  classification,  the  term  of  their  office  shall  be  eight  years. 

SEC.  V.  The  Legislature  shall  have  the  same  powers  to  alter  and  regulate  the 
jurisdiction  and  proceedings  in  law  and  equity,  as  they  have  heretofore  possessed. 

SEC.  VI.  Provision  may  be  made  by  law  for  designating  from  time  to  time,  one 
or  more  of  the  said  Justices,  who  is  not  a  Judge  of  the  Court  of  Appeals,  to  pre- 
side at  the  general  terms  of  the  said  court  to  be  held  in  the  several  districts.  Any 
three  or  more  of  the  said  Justices,  of  whom  one  of  the  said  Justices  so  designated 
shall  always  be  one,  may  hold  such  general  terms.  And  any  one  or  more  of  the 
Justices  may  hold  special  terms  and  circuit  courts,  and  any  one  of  them  may  pre- 
side in  courts  of  Oyer  and  Terminer  in  any  county. 

SEC.  VII.  The  Judges  of  the  Court  of  Appeals  and  Justices  of  the  Supreme 
Court  shall  severally  receive  at  stated  times,  for  their  services,  a  compensation  to 
be  established  by  law,  which  shall  not  be  increased  or  diminished  during  their  con- 
tinuance in  office. 

SEC.  VIII.  They  shall  not  hold  any  other  office  or  public  trust.  All  votei  foreither 
of  them,  for  any  elective  office  (except  that  of  Justice  of  the  Supreme  Court,  or  Judge 
of  the  Court  of  Appeals,)  given  by  the  Legislature  or  the  people,  shall  be  void. 
They  shall  not  exercise  any  power  of  appointment  to  public  office.  Any  male  citi- 
zen of  the  age  of  twenty-one  years,  of  good  moral  character,  and  who  possesses 
the  requisite  qualifications  of  learning  and  ability,  shall  be  entitled  to  admission  to 
practice  in  all  the  courts  of  this  State. 

SEC.  IX.  The  classification  of  the  Justices  of  the  Supreme  Court;  the  times  and 
place  of  holding  the  terms  of  the  Court  of  Appeals,  and  of  the  general  and  special 
terms  of  the  Supreme  Court,  within  the  several  districts,  and  the  Circuit  Courts,  and 
Courts  of  Oyer  and  Terminer  within  the  several  counties,  shall  be  provided  for  by 
law. 

SEC.  X.  The  testimony  in  equity  cases  shall  be  taken  in  like  manner  as  in  cases 
at  law. 

SEC.  XI.  Justices  of  the  Supreme  Court  and  Judges  of  the  Court  of  Appeals, 
may  be  removed  by  concurrent  resolution  of  both  houses  of  the  Legislature,  if  two« 
thirds  of  all  the  members  elected  to  the  Assembly,  and  a  majority  of  all  the  mem' 
bers  of  the  Senate,  concur  therein.  All  judicial  officers,  except  those  mentioned  in 


388  CONSTITUTION  OF 

this  section,  and  except  Justices  of  the  Peace,  and  Judges  and  Justices  of  inferior 
courts,  not  of  record,  may  be  removed  by  the  Senate,  on  the  recommendation  of  the 
Governor ;  but  no  removal  shall  be  made  by  virtue  of  this  section,  unless  the  cause 
thereof  be  entered  on  the  journals,  nor  unless  the  party  complained  of,  shall  have 
been  served  with  a  copy  of  the  complaint  against  him,  and  shall  have  had  an  oppor- 
tunity of  being  heard  in  his  defence.  On  the  question  of  removal,  the  ayes  and  noes 
shall  be  entered  on  the  journals. 

SEC.  XII.  The  Judges  of  the  Court  of  Appeals  shall  be  elected  by  the  electors  of 
the  State,  and  the  Justices  of  the  Supreme  Court  by  the  electors  of  the  several  ju- 
dicial districts,  at  such  times  as  may  be  prescribed  by  law. 

SEC.  XIII.  In  case  the  office  of  any  Judge  of  the  Court  of  Appeals,  or  Justice 
of  the  Supreme  Court,  shall  become  vacant  before  the  expiration  of  the  regular 
term  for  which  he  was  elected,  the  vacancy  may  be  filled  by  appointment  by  the 
Governor,  until  it  shall  be  supplied  at  the  next  general  election  of  Judges,  when  it 
shall  be  filled  by  election  for  the  residue  of  the  unexpired  term. 

SEC.  XIV.  There  shall  be  elected  in  each  of  the  counties  of  this  State,  except 
the  city  and  county  of  New-York,  one  County  Judge,  who  shall  hold  his  office  for 
four  years.  He  shall  hold  the  County  Court,  and  perform  the  duties  of  the  office 
of  Surrogate.  The  County  Court  shall  have  such  jurisdiction  in  cases  arising  in 
Justices'  Courts,  and  in  special  cases,  as  the  Legislature  may  prescribe ;  but  shall 
have  no  original  civil  jurisdiction,  except  in  such  special  cases. 

The  County  Judge,  with  two  Justices  of  the  Peace,  to  be  designated  according 
to  law,  may  hold  Courts  of  Sessions,  with  such  criminal  jurisdiction  as  the  Legisla- 
ture shall  prescribe,  and  perform  such  other  duties  as  may  be  required  by  law. 

The  County  Judge  shall  receive  an  annual  salary,  to  be  fixed  by  the  Board  of 
Supervisors,  which  shall  be  neither  increased  nor  diminished  during  his  continuance 
in  office.  The  Justices  of  the  Peace,  for  services  in  Courts  of  Sessions,  shall  be 
paid  a  per  diem  allowance  out  of  the  county  treasury. 

In  counties  having  a  population  exceeding  forty  thousand,  the  Legislature  may 
provide  for  the  election  of  a  separate  officer  to  perfonn  the  duties  of  the  office  of 
Surrogate. 

The  Legislature  may  confer  equity  jurisdiction  in  special  cases  upon  the  County 
Judge. 

Inferior  local  courts,  of  civil  and  criminal  jurisdiction,  may  be  established  by  the 
Legislature  in  cities ;  and  such  courts,  except  for  the  cities  of  New-York  and  Buf- 
falo, shall  have  an  uniform  organization  and  jurisdiction  in  such  cities. 

SEC.  XV.  The  Legislature  may,  on  application  of  the  Board  of  Supervisors, 
provide  for  the  election  of  local  officers,  not  to  exceed  two  in  any  county,  to  dis- 
charge the  duties  of  County  Judge  and  of  Surrogate,  in  cases  of  their  inability  or  of 
a  vacancy,  and  to  exercise  such  other  powers  in  special  cases  as  may  be  provided 
by  law. 

SJEC.  XVI.  The  Legislature  may  re-organize  the  judicial  districts  at  the  first  ses- 
sion after  the  return  of  every  enumeration  under  this  Constitution,  in  the  manner 


NEW-YORK.  389 

provided  for  in  the  fourth  section  of  this  article,  and  at  no  other  time  ;  and  they 
may,  at  such  session,  increase  or  diminish  the  number  of  districts,  but  such  increase 
or  diminution  shall  not  be  more  than  one  district  at  any  one  time.  Each  district 
shall  have  four  Justices  of  the  Supreme  Court ;  but  no  diminution  of  the  district 
shall  have  the  effect  to  remove  a  Judge  from  office. 

SEC.  XVII.  The  electors  of  the  several  towns,  shall,  at  their  annual  town  meet- 
ing, and  in  such  manner  as  the  Legislature  may  direct,  elect  Justices  of  the  Peace, 
whose  term  of  office  shall  be  four  years.  In  case  of  an  election  to  fill  a  vacancy  oc- 
curring before  the  expiration  of  a  full  term,  they  shall  hold  for  the  residue  of  the 
unexpired  term.  Their  number  and  classification  may  be  regulated  by  law.  Jus- 
tices of  the  Peace  and  Judges  or  Justices  of  inferior  courts,  not  of  record,  and  their 
clerks,  may  be  removed,  after  due  notice,  and  an  opportunity  of  being  heard  in  their 
defence  by  such  county,  city  or  State  courts  as  may  be  prescribed  by  law,  for  causes 
to  be  assigned  in  the  order  of  removal. 

SEC.  XVIII.  All  judicial  officers  of  cities  and  villages,  and  all  such  judicial  offi- 
cers as  may  be  created  therein  by  law,  shall  be  elected  at  such  times  and  in  such 
manner  as  the  Legislature  may  direct. 

SEC.  XIX.  Clerks  of  the  several  counties  of  this  State  shall  be  Clerks  of  the 
Supreme  Court,  with  such  powers  and  duties  as  shall  be  prescribed  by  law.  A 
Clerk  for  the  Court  of  Appeals,  to  be  ex-officio  Clerk  of  the  Supreme  Court,  and 
to  keep  his  office  at  the  seat  of  government,  shall  be  chosen  by  the  electors  of  the 
State ;  he  shall  hold  his  office  for  three  years,  and  his  compensation  shall  be  fixed 
by  law  and  paid  out  of  the  public  treasury. 

SEC.  XX.  No  judicial  officer,  except  Justices  of  the  Peace,  shall  receive  to  his 
own  use,  any  fees  or  perquisites  of  office. 

SEC.  XXI.  The  Legislature  may  authorize  the  judgments,  decrees  and  decisions 
of  any  local  inferior  Court  of  Record  of  original  civil  jurisdiction,  established  in  a 
city,  to  be  removed  for  review  directly  into  the  Court  of  Appeals. 

SEC.  XXII.  The  Legislature  shall  provide  for  the  speedy  publication  of  all  stat- 
ute laws,  and  of  such  judicial  decisions  as  it  may  deem  expedient.  And  all  laws 
and  judicial  decisions  shall  be  free  for  publication  by  any  person. 

SEC.  XXIII.  Tribunals  of  conciliation  may  be  established,  with  such  powers 
and  duties  as  may  be  prescribed  by  law,  but  such  tribunals  shall  have  no  power  to 
render  judgment  to  be  obligatory  on  the  parties,  except  they  voluntarily  submit  their 
matters  in  difference,  and  agree  to  abide  the  judgment,  or  assent  thereto,  in  the 
presence  of  such  tribunal,  in  such  cases  as  shall  be  prescribed  by  law. 

SEC.  XXIV.  The  Legislature,  at  its  first  session  after  the  adoption  of  this  Con- 
stitution, shall  provide  for  the  appointment  of  three  Commissioners,  whose  duty  it 
shall  be  to  revise,  reform,  simplify  and  abridge  the  rules  and  practice,  pleadings, 
forms  and  proceedings  of  the  Court  of  Record  of  this  State,  and  to  report  thereon 
to  the  Legislature,  subject  to  their  adoption  and  modification  from  time  to  time. 

SEC.  XXV.  The  Legislature,  at  its  first  session  after  the  adoption  of  this  Con- 
stitution, shall  provide  for  the  organization  of  the  Court  of  Appeals,  and  for  trans- 


390  CONSTITUTION  OF 

ferring  to  it  the  business  pending  in  the  Court  for  the  Correction  of  Errors,  and  for 
the  allowance  of  writs  of  error  and  appeals,  to  the  Court  of  Appeals,  from  the 
judgments  and  decrees  of  the  present  Court  of  Chancery  and  Supreme  Court,  and 
of  the  courts  that  may  be  organized  under  this  Constitution. 

ARTICLE   VII. 

SECTION  I.  After  paying  the  expenses  of  collection,  superintendence  and  ordin- 
ary repairs,  there  shall  be  appropriated  and  set  apart  in  each  fiscal  year,  out  of  the 
revenues  of  the  State  canals,  commencing  on  the  first  day  of  June,  one  thousand 
eight  hundred  and  forty-six,  the  sum  of  one  million  and  three  hundred  thousand  dol- 
lars, until  the  first  day  of  June,  one  thousand  eight  hundred  and  fifty-five,  and  from 
that  time  the  sum  of  one  million  and  seven  hundred  thousand  dollars  in  each  fiscal 
year,  as  a  sinking  fund,  to  pay  the  interest,  and  redeem  the  principal  of  that  part  of 
the  State  debt  called  the  canal  debt,  as  it  existed  at  the  time  first  aforesaid,  and  in- 
cluding three  hundred  thousand  dollars,  then  to  be  borrowed,  until  the  same  shall 
be  wholly  paid ;  and  the  principal  and  income  of  the  said  sinking  fund  shall  be  sa- 
credly applied  to  that  purpose. 

SEC.  II.  After  complying  with  the  provisions  of  the  first  section  of  this  article' 
there  shall  be  appropriated  and  set  apart  out  of  the  surplus  revenues  of  the  State 
canals,  in  each  fiscal  year,  commencing  on  the  first  day  of  June,  one  thousand  eight 
hundred  and  forty-six,  the  sum  of  three  hundred  and  fifty  thousand  dollars,  until  the 
time  when  a  sufficient  sum  shall  have  been  appropriated  and  set  apart,  under  the 
said  first  section,  to  pay  the  interest  and  extinguish  the  entire  principal  of  the  canal 
debt ;  and  after  that  period,  then  the  sum  of  one  million  and  five  hundred  thousand 
dollars  in  each  fiscal  year,  as  a  sinking  fund,  to  pay  the  interest  and  redeem  the 
principal  of  that  part  of  the  State  debt  called  the  general  fund  debt,  including  the 
debt  for  loans  of  the  State  credit  to  railroad  companies  which  have  failed  to  pay  the 
interest  thereon,  and  also  the  contingent  debt  on  State  stocks  loaned  to  incorporated 
companies  which  have  hitherto  paid  the  interest  thereon,  whenever  and  as  far  as 
any  part  thereof  may  become  a  charge  on  the  treasury  or  general  fund,  until  the 
same  shall  be  wholly  paid ;  and  the  principal  and  income  of  the  said  last  mentioned 
sinking  fund  shall  be  sacredly  applied  to  the  purpose  aforesaid;  and  if  tie  payment 
of  any  part  of  the  moneys  to  the  said  sinking  fund  shall  at  any  time  be  deferred, 
by  reason  of  the  priority  recognized  in  the  first  section  of  this  article,  the  sum  so 
deferred,  with  quarterly  interest  thereon,  at  the  then  current  rate,  shall  be  paid  to 
the  last  mentioned  sinking  fund,  as  soon  as  it  can  be  done  consistently  with  the  just 
rights  of  the  creditors  holding  said  canal  debt. 

SEC.  III.  After  paying  the  said  expenses  of  superintendence  and  repairs  of  the 
canals,  and  the  sums  appropriated  by  the  first  and  second  sections  of  this  Article, 
there  shall  be  paid  out  of  the  surplus  revenues  of  the  canals,  to  the  Treasury  of  the 
State,  on  or  before  the  thirtieth  day  of  September,  in  each  year,  for  the  use  and  ben- 
efit of  the  General  Fund,  such  sum,  not  exceeding  two  hundred  thousand  dollars,  as 
may  be  required  to  defray  the  necessary  expenses  of  the  State;  and  the  remainder 
of  the  revenues  of  the  said  canals  shall,  in  each  fiscal  year,  be  applied,  in  such 


NEW-YORK.  391 

manner  as  the  Legislature  shall  direct,  to  the  completion  of  the  Erie  Canal  En- 
largement, and  the  Genesee  Valley  and  Black  River  canals,  until  the  said  canals 
shall  be  completed. 

If  at  any  time  after  the  period  of  eight  years  from  the  adoption  of  this  Constitu. 
tion,  the  revenues  of  the  State,  unappropriated  by  this  article,  shall  not  be  sufficient 
to  defray  the  necessary  expenses  of  the  government,  without  continuing  or  laying  a 
direct  tax,  the  Legislature  may,  at  its  discretion,  supply  the  deficiency,  in  whole  or 
in  part,  from  the  surplus  revenues  of  the  canals,  after  complying  with  the  provisions 
of  the  first  two  sections  of  this  article,  for  paying  the  interest  and  extinguishing  the 
principal  of  the  Canal  and  General  Fund  debt ;  but  the  sum  thus  appropriated  from 
the  surplus  revenues  of  the  canals,  shall  not  exceed  annually  three  hundred  and  fifty 
thousand  dollars,  including  the  sum  of  two  hundred  thousand  dollars,  provided  for 
by  this  section  for  the  expenses  of  the  government,  until  the  General  Fund  debt 
shall  be  extinguished,  or  until  the  Erie  Canal  Enlargement  and  Genesee  Valley  and 
Black  River  Canals  shall  be  completed,  and  after  that  debt  shall  be  paid,  or  the 
said  canal  shall  be  completed,  then  the  sum  of  six  hundred  and  seventy-two  thou- 
sand five  hundred  dollars,  or  so  much  thereof  as  shall  be  necessary,  may  be  an- 
nually appropriated  to  defray  the  expenses  of  the  government. 

Sic.  IV.  The  claims  of  the  State  against  any  incorporated  company  to  pay  the 
interest  and  redeem  the  principal  of  the  stock  of  the  State  loaned  or  advanced  to 
such  company,  shall  be  fairly  enforced,  and  not  released  or  compromised;  and  the 
moneys  arising  from  such  claims  shall  be  set  apart  and  applied  as  part  of  the  sink- 
ing fund  provided  in  the  second  section  of  this  article.  But  the  time  limited  for  the 
fulfillment  of  any  condition  of  any  release  or  compromise  heretofore  made  or  provi- 
ded for,  may  be  extended  by  law. 

SEC.  V.  If  the  sinking  funds,  or  either  of  them,  provided  in  this  article,  shall 
prove  insufficient  to  enable  the  State,  on  the  credit  of  such  fund,  to  procure  the 
means  to  satisfy  the  claims  of  the  creditors  of  the  State  as  they  become  payable, 
the  Legislature  shall,  by  equitable  taxes,  so  increase  the  revenues  of  the  said  funds 
as  to  make  them,  respectively,  sufficient  perfectly  to  preserve  the  public  faith. 
Every  contribution  or  advance  to  the  canals,  or  their  debt,  from  any  source,  other 
than  their  direct  revenues,  shall,  with  quarterly  interest,  at  the  rates  then  current, 
be  repaid  into  the  Treasury,  for  the  use  of  the  State,  out  of  the  canal  revenues,  as 
soon  as  it  can  be  done  consistently  with  the  just  rights  of  the  creditors  holding  the 
said  canal  debt. 

SKC.  VI.  The  Legislature  shall  not  sell,  lease  or  otherwise  dispose  of  any  of 
the  canals  of  the  State ;  but  they  shall  remain  the  property  of  the  State  and  under 
its  management,  forever. 

SEC.  VII.  The  Legislature  shall  never  sell  or  dispose  of  the  salt  springs  belong- 
ing to  this  State.  The  lands  contiguous  thereto,  and  which  may  be  necessary  and 
convenient  for  the  use  of  the  salt  springs,  may  be  sold  by  authority  of  law  and  under 
the  direction  of  the  commissioners  of  the  land  office,  for  the  purpose  of  investing 
the  moneys  arising  therefrom  in  other  lands  alike  convenient ;  but  by  such  sale  and 
Purchase  the  aggregate  quantity  of  these  lands  shall  not  be  diminished. 


392  CONSTITUTION  OF 

SEC.  VIII.  No  moneys  shall  ever  be  paid  out  of  the  Treasury  of  this  State,  or 
any  of  its  funds,  or  any  of  the  funds  under  its  management,  except  in  pursuance  of 
an  appropriation  by  law;  nor  unless  such  payment  be  made  within  two  years  next 
after  the  passage  of  such  appropriation  act ;  and  every  such  law,  making  a  new  ap- 
propriation, or  continuing  or  reviving  an  appropriation,  shall  distinctly  specify  the 
sum  appropriated,  and  the  object  to  which  it  is  to  be  applied ;  and  it  shall  not  be 
sufficient  for  such  law  to  refer  to  any  other  law  to  fix  such  sum. 

SEC.  IX.  The  credit  of  the  State  shall  not,  in  any  manner,  be  given  or  loaned 
to,  or  in  aid  of,  any  individual  association  ot  corporation. 

SKC.  X.  The  State  may,  to  meet  casual  deficits  or  failures  in  revenues,  or  lor 
expenses  not  provided  for,  contract  debts,  but  such  debts,  direct  and  contingent, 
singly  or  in  the  aggregate,  shall  not  at  any  time  exceed  one  million  of  dollars ;  and 
the  moneys  arising  from  the  loans  creating  such  debts,  shall  be  applied  to  the  pur- 
pose for  which  they  were  obtained,  or  to  repay  the  debt  so  contracted,  and  to  no 
other  purpose  whatever. 

SKC.  XI.  In  addition  to  the  above  limited  power  to  contract  debts,  the  State 
may  contract  debts  to  repel  invasion,  suppress  insurrection,  or  defend  the  State  in 
war ;  but  the  money  arising  from  the  contracting  of  such  debts  shall  be  applied  to 
the  purpose  for  vrhich  it  was  raised,  or  to  repay  such  debts,  and  to  no  other  pur- 
pose whatever. 

SEC.  XII.  Except  the  debts  specified  in  the  tenth  and  eleventh  sections  of  this 
article,  no  debt  shall  be  hereafter  contracted  by  or  on  behalf  of  this  State,  unless 
such  debt  shall  be  authorized  by  a  law,  for  some  single  work  or  object,  to  be  dis- 
tinctly specified  therein ;  and  such  law  shall  impose  and  provide  for  the  collection 
of  a  direct  annual  tax  to  pay,  and  sufficient  to  pay,  the  interest  qn  such  debt  as  it 
falls  due,  and  also  to  pay  and  discharge  the  principal  of  such  debt  within  eighteen 
years  from  the  time  of  the  contracting  thereof. 

No  such  law  shall  take  effect  until  it  shall,  at  a  general  election,  have  been  sub- 
mitted to  the  people,  and  have  received  a  majority  of  all  the  votes  cast  for  and 
against  it,  at  such  election. 

On  the  final  passage  of  such  bill  in  either  house  of  the  Legislature,  the  question 
shall  be  taken  by  ayes  and  noes,  to  be  duly  entered  on  the  journals  thereof,  and  shall 
be  :  "  Shall  this  bill  pass,  and  ought  the  same  to  receive  the  sanction  of  the  people  ?" 

The  Legislature  may  at  any  time,  after  the  approval  of  such  law  by  the  people, 
if  no  debt  shall  have  been  contracted  in  pursuance  thereof,  repeal  the  same ;  and 
may  at  any  time,  by  law,  forbid  the  contracting  of  any  further  debt  or  liability  under 
such  law;  but  the  tax  imposed  by  such  act,  in  proportion  tothedcbtaml  liability  which 
may  have  been  contracted,  in  pursuance  of  such  law,  shall  remain  in  force,  and  be 
irrepealable,  and  be  annually  collected,  until  the  proceeds  thereof  shall  have  made 
the  provision  herein  before  specified  to  pay  and  discharge  the  interest  anil  principal 
of  such  debt  and  liability. 

The  money  arising  from  any  loan  or  stock  creating  such  debt  or  liability,  shall 
be  applied  to  the  work  or  object  specified  in  the  act  authorising  such  debt  or  liabil- 
ity, or  for  the  re-payment  of  such  debt  or  liability,  and  for  no  other  purpose  whatever. 


NEW-YORK.  393 

No  sucli  law  shall  be  submitted  to  be  voted  on,  within  three  months  after  its  pas- 
sage, or  at  any  general  election,  when  any  other  law,  or  any  bill,  or  any  amendment 
to  the  Constitution,  shall  be  submitted  to  be  voted  for  or  against. 

SEC.  XIII.  Every  law  which  imposes,  continues  or  revives  a  tax,  shall  distinctly 
state  the  tax  and  the  object  to  which  it  is  to  be  applied  ;  and  it  shall  not  be  suffi- 
cient to  refer  to  any  other  law  to  fix  such  tax  or  object. 

SEC.  XIV.  On  the  final  passage,  in  either  house  of  the  Legislature,  of  every 
act  which  imposes,  continues,  or  revives  a  tax,  or  creates  a  debt  or  charge,  or  makes, 
continues  or  revives  any  appropriation  of  public  or  trust  money  or  property,  or  re- 
leases, discharges,  or  commutes  any  claim  or  demand  of  the  State,  the  question 
shall  be  taken  by  ayes  and  noes,  which  shall  be  duly  entered  on  the  journals,  and 
three-fifths  of  all  the  members  elected  to  either  house,  shall,  in  all  such  cases,  be 
necessary  to  constitute  a  quorum  therein. 

ARTICLE  VIII. 

SECTION  I.  Corporations  may  be  formed  under  general  laws ;  but  shall  not  be 
en -rued  by  special  act,  except  for  municipal  purpose?,  and  in  cases  where  in  the 
judgment  of  the  Legislature,  the  objects  of  the  corporation  cannot  be  attained  un- 
der general  laws.  All  general  laws  and  special  acts  passed  pursuant  to  this  sec- 
tion, may  be  altered  from  time  to  time  or  repealed. 

SEC.  II.  Dues  from  corporations  shall  be  secured  by  such  individual  liability  of 
the  corporators  and  other  means  as  may  be  prescribed  by  law. 

SEC.  III.  The  term  corporations  as  used  in  this  article,  shall  be  construed  to  in- 
clude all  associations  and  joint-stock  companies  having  any  of  the  powers  or  privi- 
leges of  corporations  not  possessed  by  individuals  or  partnerships.  And  all  corpo- 
rations shall  have  tin*  right  ta  sue  and  shall  be  subject  to  be  sued  in  all  courts  in 
like  cases  as  natural  persons. 

SEC.  IV.  The  Legislature  shall  have  no  power  to  pass  any  act  granting  any  spe- 
cial charter  for  banking  purposes  ;  but  corporations  or  associations  may  be  formed 
for  such  purposes  under  general  h\\  -. 

SEC.  V.  The  Legislature  shall  have  no  power  to  pass  any  law  sanctioning  in  any 
manner,  directly  or  indirectly,  the  suspension  of  specie  payments,  by  any  person, 
association  or  corporation  issuing  bank  notes  of  any  description. 

x  .  VI.  The  Legislature  shall  provide  by  law  for  the  registry  o{  all  bills  or 
ii' it  i -s,  issued  or  put  in  circulation  as  money,  and  shall  require  ample  security  for 
the  redemption  of  the  same  in  specie. 

SKC.  VII.  The  stockholders  in  every  corporation  and  joint-stock  association  for 
banking  purposes,  issuing  bank  notes  or  any  kind  of  paper  credits  to  circulate  as 
money,  after  the  first  day  of  January,  one  thousand  eight  hundred  and  fifty,  shall  be 
individually  responsible  to  the  amount  of  their  respective  share  or  shares  of  stock 
in  any  such  corporation  or  association,  for  all  its  debts  and  liabilities  of  every  kind, 
contracted  after  the  said  first  day  of  January,  one  thousand  eight  hundred  and  fifty. 

SEC.  VIII.    In  case  of  the  insolvency  of  any  bank  or  banking  association,  the  bill- 


394  CONSTITUTION  OF 

holders  thereof  shall  be  entitled  to  preference  in  payment,  over  all  other  creditors  of 
such  bank  or  association. 

SEC.  IX.  It  shall  be  the  duty  of  the  Legislature  to  provide  for  the  organization 
of  cities  and  incorporated  villages,  and  to  restrict  their  power  of  taxation,  assess- 
ment, borrowing  money,  contracting  debts,  and  loaning  their  credit,  so  as  to  prevent 
abuses  in  assessments,  and  in  contracting  debt  by  such  municipal  corporations. 

ARTICLE   IX. 

SECTION  I.  The  capital  of  the  Common  School  Fund;  the  capital  of  the  Literature 
Fund,  and  the  capital  of  the  United  States  Deposit  Fund,  shall  be  respectively  pre- 
served inviolate.  The  revenue  of  the  said  Common  School  Fund  shall  be  applied 
to  the  support  of  common  schools ;  the  revenues  of  the  said  Literature  Fund  shall 
be  applied  to  the  support  of  academies  ;  and  the  sum  of  twenty-five  thousand  dollars 
of  the  revenues  of  the  United  States  Deposit  Fund  shall  each  year  be  appropriated 
to  and  made  a  part  of  the  capital  of  the  said  Common  School  Fund. 

ARTICLE  X. 

SECTION  I.  Sheriffs,  Clerks  of  counties,  including  the  Register  and  Clerk  of  the 
city  and  county  of  New-York,  Coroners,  and  District  Attorneys,  shall  be  chosen  by 
the  electors  of  the  respective  counties,  once  in  every  three  years,  and  as  often  as 
vacancies  shall  happen.  Sheriffs  shall  hold  no  oiher  office,  and  be  ineligible  for  the 
next  three  years  after  the  termination  of  their  offices.  They  may  be  required  by 
law,  to  renew  their  security,  from  time  to  time ;  and  in  default  of  giving  such  new 
security,  their  offices  shall  be  deemed  vacant.  But  the  county  shall  never  be  made 
responsible  for  the  acts  of  the  Sheriff. 

The  Govei-nor  may  remove  any  officer  in  this  section  mentioned,  within  the  term 
for  which  he  shall  have  been  elected ;  giving  to  such  officer  a  copy  of  the  charges 
against  him,  and  an  opportunity  of  being  heard  in  his  defense. 

SEC.  II.  All  county  officers  whose  election  or  appointment  is  not  provided  for  by 
this  Constitution,  shall  be  elected  by  the  electors  of  the  respective  counties,  or  ap- 
pointed by  the  Boards  of  Supervisors,  or  other  county  authorities,  as  the  Legisla- 
ture shall  direct.  All  city,  town,  and  village  officers,  whose  election  or  appointment 
is  not  provided  foi  bj  this  Constitution,  shall  be  elected  by  the  electors  of  such  cities, 
towns,  and  villages,  ot  of  some  division  thereof,  or  appointed  by  such  authorities, 
thereof,  as  the  Legislature  shall  designate  for  that  purpose.  All  other  officers 
whose  election  or  appointment  is  not  provided  for  by  this  Constitution,  and  all  offi- 
cers whose  offices  may  hereafter  be  created  by  law,  shall  be  elected  by  the  people, 
or  appointed,  as  the  Legislature  may  direct. 

SEC  ill.  When  the  duration  of  any  office  is  not  provided  by  this  Constitution,  it 
may  be  declared  by  law ;  and  if  not  so  declared,  such  office  shall  be  held  during  the 
pleasure  of  the  authority  making  the  appointment. 

SEC.  IV.  The  time  of  electing  all  officers  named  in  this  article  shall  be  prescribed 
by  law. 

SEC.  V.    The  Legislature  shall  provide  for  filling  vacancies  in  office,  and  in  case 


NEW-YORK.  395 

of  elective  officers,  no  person  appointed  to  fill  a  vacancy  shall  hold  his  office,  by  vir- 
tue of  such  appointment,  longer  than  the  commencement  of  the  political  year  next 
succeeding  the  first  annual  election  after  the  happening  of  the  vacancy. 

SEC.  V[.  The  political  year  and  Legislative  term,  shall  begin  on  the  first  day  of 
January ;  and  the  Legislature  shall  every  year  assemble  on  the  first  Tuesday  in  Jan- 
uary, unless  a  different  day  shall  be  appointed  by  law. 

SEC.  VII.  Provisions  shall  be  made  by  law  for  the  removal  for  misconduct  or 
malversation  in  office  of  all  officers  (except  judicial)  whose  powers  and  duties  are 
not  local  or  Legislative,  and  who  shall  be  elected  at  general  elections,  and  also  for 
supplying  vacancies  created  by  such  removal. 

SEC.  VI11.  The  Legislature  may  declare  the  cases  in  which  any  office  shall  be 
deemed  vacant,  where  no  provision  is  made  for  that  purpose  in  this  Constitution. 

ARTICLE  XI. 

SECTION  I.  The  militia  of  this  State  shall  at  all  times  hereafter,  be  armed  and 
disciplined,  and  in  readiness  for  service;  but  all  such  inhabitants  of  this  State  of  any 
religious  denomination  whatever,  as  from  scruples  of  conscience  may  be  averse  to 
bearing  arms,  shall  be  excused  therefrom,  upon  such  conditions  as  shall  be  prescribed 
by  law. 

SEC.  II.  Militia  officers  shall  be  chosen,  or  appointed,  as  follows:  captains,  sub- 
alterns, and  non-commissioned  officers,  shall  be  chosen  by  the  written  votes  of  the 
members  of  their  respective  companies.  Field  officers  of  regiments  and  separate 
battalions,  by  the  written  votes  of  the  commissioned  officers  of  the  respective  regi- 
ments and  separate  battalions ;  brigadier-generals  and  brigade  inspectors,  by  the 
field  officers  of  their  respective  brigades ;  major-generals,  brigadier-generals,  and 
commanding  officers  of  regiments  or  separate  battalions,  shall  appoint  the  staff  offi- 
cers to  their  respective  divisions,  brigades,  regiments,  or  separate  battalions. 

SEC.  HI.  The  Governor  shall  nominate,  and  with  the  consent  of  the  Senate,  ap- 
point all  major  generals,  and  the  commissary  general.  The  adjutant  general,  and 
other  chiefs  of  gtaff  departments,  and  the  aids-de-camp  of  the  commander-in-chief 
shall  be  appointed  by  the  Governor,  and  their  commissions  shall  expire  with  the 
time  for  which  the  Governor  shall  have  been  elected.  The  commissary  general 
shall  hold  his  office  for  two  years.  He  shall  give  security  for  the  faithful  execution 
of  the  duties  of  his  office,  in  such  manner  and  amount  as  shall  be  prescribed  by  law. 

SEC.  IV.  The  Legislature  shall,  by  law,  direct  the  time  and  manner  of  electing 
militia  officers,  and  of  certifying  their  elections  to  the  Governor. 

SEC.  V.  The  commissioned  officers  of  the  militia  shall  be  commissioned  by  the 
Governor ;  and  no  commissioned  officer  shalj  be  removed  from  office,  unless  by  the 
Senate,  on  the  recommendation  of  the  Governor,  stating  the  grounds  on  which  such 
removal  is  recommended,  or  by  the  decision  of  a  court  martial,  pursuant  to  law.  The 
present  officers  of  the  militia  shall  hold  their  commissions  subject  to  removal,  as  be- 
fore provided. 

SEC.  VI.   In  case  the  mode  of  election  and  appointment  of  militia  officers  hereby 


396  CONSTITUTION  OF 

directed,  shall  not  be  found  conducive  to  the  improvement  of  the  militia,  the  Legis- 
lature may  abolish  the  same,  and  provide  by  law  for  their  appointment  and  remo- 
val, if  two-thirds  of  the  members  present  in  each  House  shall  concur  therein. 

ARTICLE  XII. 

SECTION  I.  Members  of  the  Legislature,  and  all  officers,  executive  and  judicial,  ex- 
cept such  inferior  officers  as  may  be  by  law  exempted,  shall,  before  they  enter  on  thedu- 
ties  of  their  respective  offices,  take  and  subscribe  the  following  oath  or  affirmation : 

"  I  do  solemnly  swear  (or  affirm,  as  the  case  may  be)  that  I  will  support  the 
Constitution  of  the  United  States,  and  the  Constitution  of  the  State  of  New-York ; 
and  that  I  will  faithfully  discharge  the  duties  of  the  office  of  according  to  the 

best  of  my  ability." 

And  no  other  oath,  declaration,  or  test,  shall  be  required  as  a  qualification  for  any 
office  or  public  trust. 

ARTICLE  XIII. 

SECTION  I.  Any  amendment  or  amendments  to  this  Constitution  may  be  pro- 
posed in  the  Senate  and  Assembly;  and  if  the  same  shall  be  agreed  to  by  a  major- 
ity of  the  members  elected  to  each  of  the  two  Houses,  such  proposed  amendment  or 
amendments  shall  be  entered  on  their  journals,  with  the  yeas  and  nays  taken  thereon, 
and  referred  to  the  Legislature,  to  be  chosen  at  the  next  general  election  of  Sena- 
tors, and  shall  be  published  for  three  months  previous  to  the  time  of  making  such 
choice,  and  if  in  the  Legislature  so  next  chosen,  as  aforesaid,  such  proposed  amend- 
ment or  amendments  shall  be  agreed  to  by  a  majority  of  all  the  members  elected  to 
each  House,  then  it  shall  be  the  duty  of  the  Legislature  to  submit  such  proposed 
amendment  or  amendments  to  the  people,  in  such  manner  and  at  such  time  as  the 
Legislature  shall  prescribe  ;  and  if  the  people  shall  approve  and  ratify  such  amend- 
ment or  amendments,  by  a  majority  of  the  electors  qualified  to  vote  for  members  of 
the  Legislatm-e,  voting  thereon,  such  amendment  or  amendments  shall  become  part 
of  the  Constitution. 

SEC.  II.  At  the  general  election  to  be  held  in  the  year  eighteen  hundred  and 
sixty-six,  and  in  each  twentieth  year  thereafter,  and  also  at  such  time  as  the  Legis- 
lature may  by  law  provide,  the  question,  "  Shall  there  be  a  Convention  to  revise  the 
Constitution,  and  amend  the  same?"  shall  be  decided  by  the  electors  qualified  to 
vote  for  members  of  the  Legislature ;  and  in  case  a  majority  of  the  electors  so  qual- 
ified, voting  at  such  election,  shall  decide  in  favor  of  a  Convention  for  such  purpose, 
the  Legislature  at  its  next  session  shall  provide  by  law  for  the  election  of  Delegates 
to  such  Convention. 

ARTICLE  XIV. 

SECTION  I.  The  first  election  of  Senators  and  Members  of  Assembly,  pursuant 
to  the  provisions  of  this  Constitution,  shall  be  held  on  the  Tuesday  succeeding  the 
first  Monday  of  November,  one  thousand  eight  hundred  and  forty-seven. 

The  Senators  and  Members  of  Assembly,  who  may  be  in  office  on  the  first  clay 


NEW-YORK.  397 

of  January,  one  thousand  eight  hundred  and  forty-seven,  shall  hold  their  offices  un- 
til and  including  the  thirty-first  day  of  December  following,  and  no  longer. 

SEC.  II.  The  first  election  of  Governor  and  Lieutenant  Governor  under  this 
Constitution,  shall  be  held  on  the  Tuesday  succeeding  the  first  Monday  of  Novem- 
ber, one  thousand  eight  hundred  and  forty-eight ;  and  the  Governor  and  Lieutenant 
Governor  in  office  when  this  Constitution  shall  take  effect,  shall  hold  their  re- 
spective offices  until  and  including  the  thirty-first  day  of  December  of  taat  year. 

SEC.  III.  The  Secretary  of  State,  Comptroller,  Treasurer,  Attorney  General, 
District  Attorney,  Surveyor  General,  Canal  Commissioners,  and  Inspectors  of  State 
Prisons,  in  office  when  this  Constitution  shall  take  effect,  shall  hold  their  respective 
offices  until  and  including  the  thirty-first  day  of  December,  one  thousand  eight  hun- 
dred and  forty-seven,  and  no  longer. 

SEC.  IV.  The  first  election  of  Judges  and  Clerk  of  the  Court  of  Appeals,  Jus- 
tices of  the  Supreme  Court,  and  County  Judges,  shall  take  place  at  such  time  be- 
tween the  first  Tuesday  of  April  and  the  second  Tuesday  of  June,  one  thousand 
eight  hundred  and  forty-seven,  as  may  be  prescribed  by  law.  The  said  courts  shall 
respectively  enter  upon  their  duties,  on  the  first  Monday  of  July,  next  thereafter ; 
but  the  term  of  office  of  said  Judges,  Clerk  and  Justices  as  declared  by  this  Con- 
stitution, shall  be  deemed  to  commence  on  the  first  day  of  January,  one  thousand 
eight  hundred  and  forty-eight. 

SEC.  V.  On  the  first  Monday  of  July,  one  thousand  eight  hundred  and  forty- 
seven,  jurisdiction  of  all  suits  and  proceedings  then  pending  in  the  present  Supreme 
Court  and  Court  of  Chancery,  and  all  suits  and  proceedings  originally  commenced 
and  then  pending  in  any  Court  of  Common  Pleas,  (except  in  the  city  and  county  of 
New-York,)  shall  become  vested  in  the  Supreme  Court  hereby  established.  Pro- 
ceedings pending  in  Courts  of  Common  Pleas,  and  in  suits  originally  commenced 
in  Justices'  Courts,  shall  be  transferred  to  the  County  Courts  provided  for  in  this 
Constitution,  in  such  manner  and  form,  and  under  such  regulation  as  shall  be  pro- 
vided by  law.  The  Courts  of  Over  and  Terminer  hereby  established,  shall,  in  their 
respective  counties,  have  jurisdiction,  on  and  after  the  day  last  mentioned,  of  all  in- 
dictments and  proceedings  then  pending  in  the  present  Courts  of  Oyer  and  Ter- 
miner, and  also  of  all  indictments  and  proceedings  then  pending  in  the  present 
Courts  of  General  Sessions  of  the  Peace,  except  in  the  city  of  New-York,  and  ex- 
cept in  cases  of  which  the  Courts  of  Sessions  hereby  established  may  lawfully  take 
cognizance;  and  of  such  indictments  and  proceeding  the  Courts  of  Sessions  hereby 
established  shall  have  jurisdiction  on  and  after  the  day  last  mentioned. 

SEC.  VI.  The  Chancellor,  and  the  present  Supreme  Court,  shall,  respectively, 
have  power  to  hear  and  determine  any  of  such  suits  and  proceedings  ready  on 
the  first  Monday  of  July,  one  thousand  eight  hundred  and  forty-soven,  for  hearing 
or  decision,  and  shall,  for  their  services  therein,  be  entitled  to  their  present  rates  of 
compensation,  until  the  first  day  of  July,  one  thousand  eight  hundred  and  forty- 
eight,  or  until  all  such  suits  and  proceedings  shall  be  sooner  heard  and  determined. 
Masters  in  Chancery  may  continue  to  exercise  the  functions  of  their  office  in  the 


398  CONSTITUTION  OF 

Court  of  Chancery,  so  long  as  the  Chancellor  shall  continue  to  exercise  the  functions 
of  his  office  under  the  provisions  of  this  Constitution. 

And  the  Supreme  Court  hereby  established  shall  also  have  power  to  hear  and 
determine  such  of  said  suits  and  proceedings  as  may  be  pescribed  by  law. 

SEC.  VII.  In  case  any  vacancy  shall  occur  in  the  office  of  Chancellor  or  Justice 
of  the  present  Supreme  Court,  previously  to  the  first  day  of  July,  one  thousand 
eight  hundred  and  forty-eight,  the  Governor  may  nominate,  and  by  and  with  the 
advice  and  consent  of  the  Senate,  appoint  a  proper  person  to  fill  such  vacancy. 
Any  Judge  of  the  Court  of  Appeals  or  Justice  of  the  Supreme  Court,  elected 
under  this  Constitution,  may  receive  and  hold  such  appointment. 

SEC.  VIII.  The  offices  of  Chancellor,  Justice  of  the  existing  Supreme  Court, 
Circuit  Judge,  Vice  Chancellor,  Assistant  Vice  Chancellor,  Judge  of  the  existing 
county  courts  of  each  county,  Supreme  Court  Commissioner,  Master  in  Chancery, 
Examiner  in  Chancery  and  Surrogate,  (except  as  herein  otherwise  provided,)  are 
abolished  from  and  after  the  first  Monday  of  July,  one  thousand  eight  hundred  and 
forty-seven. 

SEC.  IX.  The  Chancellor,  the  Justices  of  the  present  Supreme  Court,  and  the 
Circuit  Judges  are  hereby  declared  to  be  severally  eligible  to  any  office  at  the  first 
election  under  this  Constitution. 

SEC.  X.  Sheriffs,  Clerks  of  counties,  (including  the  Register  and  Clerk  of  the 
city  and  county  of  New-York)  and  Justices  of  the  Peace,  and  Coroners,  in  office 
when  this  Constitution  shall  take  effect,  shall  hold  their  respective  offices  until  the 
expiration  of  the  term  for  which  they  were  respectively  elected. 

SEC.  XL  Judicial  officers  in  office  when  this  Constitution  shall  take  effect,  may 
continue  to  receive  such  fees  and  perquisites  of  office  as  are  now  authorized  by  law, 
until  the  first  day  of  July,  one  thousand  eight  hundred  and  forty-seven,  notwith- 
standing the  provisions  of  the  twentieth  section  of  the  sixth  article  of  this  Consti- 
tution. 

SEC.  XII.  All  local  courts  established  in'any  city  or  village,  including  the  Supe- 
rior Court,  Common  Pleas,  Sessions  and  Surrogate's  Courts  of  the  city  and  county 
of  New-York,  shall  remain,  until  otherwise  directed  by  the  Legislature,  with  their 
present  powers  and  jurisdictions  ;  and  the  judges  of  suchcourtsand  any  clerks  thereof 
in  office  on  the  first  day  of  January,  one  thousand  eight  hundred  and  forty-seven, 
shall  continue  in  office  until  the  expiration  of  their  terms  of  office,  or  until  the  Leg- 
islature shall  otherwise  direct. 

SEC.  XIII.  This  Constitution  shall  be  in  force  from  and  including  the  first  day  of 
January,  one  thousand  eight  hundred  and  forty-seven,  except  as  is  herein  otherwise 
provided. 

Done,  in  Convention,  at  the  Capitol,  in  the  city  of  Albany,  the  ninth  day  of  Octo- 
ber, in  the  year  one  thousand  eight  hundred  and  forty-six,  and  of  the  Independence 
of  the  United  States  of  America  the  seventy-first. 


STATE  OF  OHIO.  399 


CONSTITUTION 

OF 

THE    STATE    OF    OHIO- 


WE,  THE  PEOPLE  of  the  eastern  division  of  the  territory  of  the  United  States 
northwest  of  the  river  Ohio,  having  the  right  of  admission  into  the  General  Government, 
as  a  member  of  the  Union,  consistent  with  the  Constitution  of  the  United  States,  the 
ordinance  of  Congress  of  one  thousand  seven  hundred  and  eighty-seven,  and  of  the 
law  of  Congress  entitled  "  An  act  to  enable  the  people  of  the  eastern  division  of 
the  territory  of  the  United  States,  northwest  of  the  river  Ohio,  to  form  a  constitu- 
tion and  State  government,  and  for  the  admission  of  such  State  into  the  Union  on 
an  equal  footing  with  the  original  States,  and  for  other  purposes" :  in  order  to  estab- 
lish justice,  promote  the  welfare,  and  secure  the  blessings  of  liberty  to  ourselves 
and  posterity,  do  ordain  and  establish  the  following  Constitution  a  form  of  govern- 
ment, and  do  mutually  agree  with  each  other  to  form  ourselves  into  a  free  and  in- 
dependent State,  by  the  name  of  the  State  of  Ohio. 

ARTICLE  I. 

SECTION  I.  The  Legishtive  authority  of  this  State  shall  be  vested  in  a  General 
Assembly,  which  shall  consist  of  a  Senate  and  House  of  Representatives,  both  to 
be  elected  by  the  people. 

SEC.  II.  Within  one  year  after  the  first  meeting  of  the  General  Assembly,  and 
within  every  subsequent  term  of  four  years,  an  enumeration  of  all  the  white  male 
inhabitants  above  twenty-one  years  of  age  shall  be  made,  in  such  manner  ag  shall  be 
directed  by  law.  The  number  of  representatives  shall  at  the  several  periods  of 
making  such  enumeration,  be  fixed  by  the  Legislature  and  apportioned  among  tho 
several  counties  according  to  the  number  of  white  male  inhabitants  above  twenty- 
one  years  of  age  in  each,  and  shall  never  be  less  than  twenty-four  nor  greater  than 
thirty-six,  until  the  number  of  white  male  inhabitants  above  twenty-one  years  of  age 
shall  be  twenty-two  thousand,  and  after  that  event,  at  such  ratio  that  the  whole 
number  of  representatives  shall  never  be  less  than  thirty-six,  nor  exceed  seventy- 
two. 

SEC.  III.  The  representatives  shall  be  chosen  annually  by  the  citizens  of  each 
county  respectively,  on  the  second  Tuesday  of  October. 

SEC.  IV.   No  person  shall  be  a  representative  who  shall  not  have  attained  the 


400  CONSTITUTION  OF 

age  of  twenty-five  years,  and  be  a  citizen  of  the  United  States,  and  an  inhabitant  of 
this  State ;  shall  also  have  resided  within  the  limits  of  the  county  in  which  he  shall 
be  chosen,  one  year  next  preceding  his  election,  unless  he  shall  have  been  absent  on 
the  public  business  of  the  United  States  or  of  this  State,  and  shall  have  paid  a 
State  or  county  tax. 

SEC  V.  The  Senators  shall  be  chosen  biennially  by  the  qualified  voters  for  repre- 
sentatives ;  and  on  their  being  convened  in  consequence  of  the  first  election,  they 
shall  be  divided  by  lot,  from  their  respective  counties  or  districts,  as  near  as  can 
be,  into  two  classes :  the  seats  of  the  Senators  of  the  first  class  shall  be  vacated  at 
the  expiration  of  the  first  year,  and  of  the  second  class  at  the  expiration  of  the 
second  year :  so  that  one-half  thereof,  as  near  as  possible,  may  be  annually  chosen 
forever  thereafter. 

SEC.  VI.  The  number  of  Senators  shall,  at  the  several  periods  of  making  the 
enumeration  before  mentioned,  be  fixed  by  the  Legislature,  and  apportioned  among 
the  several  counties  or  districts  to  be  established  by  law,  according  to  the  number 
of  white  male  inhabitants  of  the  age  of  twenty-one  years  in  each,  and  shall  never  be 
less  than  one-third  nor  more  than  one  half  of  the  number  of  representatives. 

SKC.  VII.  No  person  shall  be  a  Senator  who  has  not  arrived  at  the  age  of  thirty 
years,  and  is  a  citizen  of  the  United  States ;  shall  have  resided  two  years  in  the 
county  or  district,  immediately  preceding  the  election,  unless  he  shall  have  been 
absent  on  the  public  business  of  the  United  States,  or  of  this  State ;  and  shall, 
moreover,  have  paid  a  State  or  county  tax. 

SEC.  VIII.  The  Senate  and  House  of  Representatives,  when  assembled,  shall 
each  choose  a  Speaker  and  its  other  officers;  be  judges  of  the  qualifications  and 
elections  of  its  members,  and  sit  upon  its  own  adjournments ;  two-thirds  of  each 
House  shall  constitute  a  quorum  to  do  business  ;  but  a  smaller  number  may  adjourn 
from  day  to  day,  and  compel  the  attendance  of  absent  members. 

SEC.  IX.  Each  House  shall  keep  a  journal  of  its  proceedings,  and  publish  them  ; 
the  yeas  and  nays  of  the  members,  on  any  question,  shall,  at  the  desire  of  any  two 
of  them,  be  entered  on  the  journals. 

SEC.  X.  Any  two  members  of  either  House  shall  have  liberty  to  dissent  from, 
and  protest  against  ,  any  act  or  resolution  which  they  may  think  injurious  to  the 
public,  or  any  individual,  and  have  the  reasons  of  their  dissent  entered  on  the 
journals. 

SEC.  XI.  Each  House  may  determine  the  rules  of  its  proceedings,  punish  its 
members  for  disorderly  behavior,  and  with  the  concurrence  of  two-thirds,  expel  a 
member,  but  not  a  second  time  for  the  same  cause ;  and  shall  have  all  other  powers 
necessary  for  a  branch  of  the  Legislature  of  a  free  and  independent  State. 

SEC.  XII.  When  vacancies  happen  in  either  House,  the  Governor,  or  the  person 
exercising  the  power  of  the  Governor,  shall  issue  writs  of  election,  to  fill  such  va- 
cancies. 

SEC.  XIII.  Senators  and  Representatives  shall,  in  all  cases,  except  treason, 
felony,  or  breach  of  the  peace,  be  privileged  from  arrest  during  the  session  of  the 


OHIO.  401 

General  Assembly,   and  in  going  to  and  returning  from  the  same;  and  for  any 
speech  or  debate  in  either  House,  they  shall  not  be  questioned  in  any  other  place. 

SBC.  XIV.  Each  House  may  punish  by  imprisonment,  during  their  session,  any 
person  not  a  member,  who  shall  be  guilty  of  disrespect  to  the  House,  by  any  dis- 
orderly or  contemptuous  behavior  in  their  presence;  provided  such  imprisonment 
shall  not  at  any  one  time  exceed  twenty-four  hours. 

SEC.  XV.  The  doors  of  each  House,  and  of  committees  of  the  whole,  shall  be 
kept  open,  except  in  such  cases  as,  in  the  opinion  of  the  House,  require  secrecy. 
Neither  House  shall,  without  the  consent  of  the  other,  adjourn  for  more  than  two 
days,  nor  to  any  other  place  than  that  in  which  the  two  Houses  shall  be  sitting. 

SEC  XVI.  Bills  may  originate  in  either  House,  but  maybe  altered,  amended  or 
rejected  by  the  other. 

SEC.  XVII.  Every  bill  shall  be  read  on  three  different  days  in  each  House,  un- 
less in  case  of  urgency,  three-fourths  of  the  House,  where  such  bill  is  so  depending, 
shall  deem  it  expedient  to  dispense  with  this  rule ;  and  every  bill  having  passed 
both  Houses  shall  be  signed  by  the  Speakers  of  their  respective  Houses. 

SEC.  XVIII.  The  style  of  the  laws  of  this  State  shall  be  "  Be  it  enacted,  by  the 
General  Assembly  of  the  State  of  Ohio." 

SEC.  XXI.  The  Legislature  of  this  State  shall  not  allow  the  following  officers 
of  government  greater  annual  salaries  than  as  follows,  until  the  year  eighteen  hun- 
dred and  eight,  to  wit:  The  Governor  not  more  than  one  thousand  dollars ;  the 
Judges  of  the  Supreme  Court,  not  more  than  one  thousand  dollars  each  ;  the  Pres- 
idents of  the  Courts  of  Common  Pleas,  not  more  than  eight  hundred  dollars  each ; 
th>-  Secretary  of  State,  not  more  than  five  hundred  dollars  ;  the  Auditors  of  Public 
accounts,  not  more  than  seven  hundred  and  fifty  dollars ;  the  Treasurer  not  more 
than  four  hundred  and  fifty  dollars ;  no  member  of  the  Legislature  shall  receive 
more  than  two  dollars  per  day,  during  his  attendance  on  the  Legislature,  nor  more 
for  every  twenty-five  miles  he  shall  travel,  in  going  to  and  returning  from  the  Gen- 
eral Assembly. 

SEC.  XX.  No  Senator  or  Representative  shall,  during  the  time  for  which  he  shall 
have  been  elected,  be  appointed  to  any  civil  office  under  this  State,  which  shall  have 
been  created,  or  the  emoluments  of  which  shall  have  been  increased  during  such 
time. 

SEC.  XXI.  No  money  shall  be  drawn  from  the  treasury,  but  in  consequence  of 
appropriations  made  by  law. 

SEC.  XXII.  An  accurate  statement  of  the  receipts  and  expenditures  of  the  pub- 
lic money,  shall  be  attached  to,  and  published  with  the  laws,  annually. 

SEC.  XXIII.  The  House  of  Representatives  shall  have  the  sole  power  of  im- 
peaching, but  a  majority  of  all  the  members  must  concur  in  an  impeachment.  All 
impeachments  shall  be  tried  by  the  Senate ;  and  when  sitting  for  that  purpose,  the 
Senators  shall  be  upon  oath  or  affirmation,  to  do  justice  according  to  law  and  evi- 
dence. No  person  shall  be  convicted,  without  the  concurrence  of  two-thirds  of  all 
the  Senators. 

18* 


402  CONSTITUTION  OF 

SEC.  XXIV.  The  Governor,  and  all  other  civil  officers  under  this  State  shall  be 
liable  to  impeachment  for  any  misdemeanor  in  office;  but  judgment  in  such  case, 
shall  not  extend  further  than  removal  from  office  and  disqualification  to  hold  any 
office  of  honor,  profit  or  trust,  under  this  Slate.  The  party,  whether  convicted  or 
acquitted,  shall,  nevertheless,  be  liable  to  indictment,  trial,  judgment  and  punish- 
ment, according  to  law. 

S«c.  XXV.  The  first  session  of  the  General  Assembly  shall  commence  on  the 
first  Tuesday  of  March  next ;  and  forever  after,  the  General  Assembly  shall  meet  on 
the  first  Monday  of  December,  in  every  year,  and  at  no  other  period,  unless  directed 
by  law,  or  provided  for  by  this  Constitution. 

Sec.  XXVI.  No  Judge  of  any  Court  of  Law  or  Equity,  Secretary  of  State,  At- 
torney General,  Register,  Clerk  of  any  Court  of  Record,  Sheriff,  or  Collector, 
Member  of  either  House  of  Congress,  or  person  holding  any  office  under  ihe  au- 
thority of  the  United  States,  or  any  lucrative  office  under  the  authority  of  this  State, 
(provided  that  appointments  in  the  militia,  or  Justices  of  the  Peace,  shall  not  be 
considered  lucrative  offices,)  shall  be  eligible  as  a  candidate  for,  or  have  a  seat  in, 
the  General  Assembly. 

SEC.  XXVII.  No  person  shall  be  appointed  to  any  office  within  any  county,  \\lio 
shall  not  have  been  a  citizen  and  inhabitant  therein  one  year  next  before  his  ap- 
pointment, if  the  county  shall  have  been  so  long  erected ;  but  if  the  county  shall  not 
have  been  so  long  erected,  then  within  the  limits  of  the  county  or  counties  out  of 
which  it  shall  have  been  taken. 

SEC.  XXVIII.  No  person,  who  heretofore  hath  been,  or  hereafter  may  be,  a  Col- 
lector or  holder  of  public  moneys,  shall  have  a  seat  in  either  House  of  the  General  As- 
sembly, until  such  person  shall  have  accounted  for,  and  paid  into  the  treasury,  all 
sums  for  which  he  may  be  accountable  or  liable. 

ARTICLE  II. 

SECTION  I.  The  Supreme  Executive  power  of  this  State  shall  be  vested  in  a 
Governor. 

SEC.  II.  The  Governor  shall  be  chosen  by  the  electors  of  the  members  of  the  (  HM- 
eral  Assembly,  on  the  second  Tuesday  of  October,  at  the  same  places,  and  in  the  same 
manner,  that  they  shall  respectively  vote  for  members  thereof.  The  returns  of  every 
election  for  Governor  shall  be  sealed  up  and  transmitted  to  the  seat  of  government, 
by  the  returning  officers,  directed  to  the  Speaker  of  the  Senate,  who  shall  open  and 
publish  them,  in  the  presence  of  a  majority  of  the  members  of  each  House  of  the 
General  Assembly :  the  person  having  the  highest  number  of  votes  shall  be  Gov- 
ernor ;  but  if  two  or  more  shall  be  equal  and  highest  in  votes,  one  of  them  shall  be 
chosen  Governor  by  joint  ballot  of  both  Houses  of  the  General  Assembly.  Con- 
tested elections  for  Governor  shall  be  determined  by  both  Houses  of  the  General 
Assembly,  in  such  manner  as  shall  be  prescribed  by  law. 

SEC.  III.   The  first  Governor  shall  hold  his  office  until  the  first  Monday  of  De- 
cember, one  thousand  eight  hundred  and  five,  and  until  another  Governor  shall  be 


OHIO.  403 

elected  and  qualified  to  office ;  and  forever  after  the  Governor  shall  hold  his  office 
for  the  term  of  two  years,  and  until  another  Governor  shall  be  elected  and  qualified  ; 
but  he  shall  not  be  eligible  more  than  six  years,  in  any  term  of  eight  years.  He 
shall  be  at  least  thirty  years  of  age,  and  have  been  a  citizen  of  the  United  States 
twelve  years,  and  an  inhabitant  of  this  State  four  .years  next  preceding  his  election. 
SEC.  IV.  He  shall,  from  time  to  time,  give  to  the  General  Assembly,  information 
of  the  state  of  the  Government,  and  recommend  to  their  consideration  such  meas- 
ures as  he  shall  deem  expedient. 

SEC.  V.  He  shall  have  the  power  to  grant  reprieves  and  pardons,  after  convic- 
tion, except  in  cases  of  impeachment. 

SEC.  VI.  The  Governor  shall,  at  stated  times,  receive  for  his  services  a  compen- 
sation, which  shall  neither  be  increased  nor  diminished,  during  the  term  for  which 
he  shall  have  been  elected. 

SEC.  VII.  He  may  require  information,  in  writing,  from  the  officers  in  the  ex- 
ecutive department,  upon  any  subject  relating  to  the  duties  of  their  respective  of- 
fices, and  shall  take  care  that  the  laws  he  faithfully  executed. 

SEC.  VIII.  When  any  officer,  the  right  of  whose  appointment  is,  by  this  Con- 
stitution, vested  in  the  General  Assembly,  shall  during  the  recess  die,  or  his  office 
by  any  means  become  vacant,  the  Governor  shall  have  power  to  fill  such  vacancy, 
by  granting  a  commission,  which  shall  expire  at  the  end  of  the  next  session  of  the 
Legislature. 

SEC.  IX.  He  may,  on  extraordinary  occasions,  convene  the  General  Assembly, 
by  proclamation,  and  shall  state  to  them,  when  assembled,  the  purposes  for  which 
they  shall  have  been  conveiu-d. 

SEC.  X.  He  shall  be  Commander-in-Chief  of  the  army  and  navy  of  this  State, 
and  of  the  militia,  except  when  they  shall  be  called  into  the  service  of  the  United 
States. 

SEC.  XI.  In  case  of  disagreement  between  the  two  Houses,  with  respect  to  the 
time  of  adjournment,  the  Governor  shall  have  the  power  to  adjourn  the  General 
Assembly  to  such  time  as  he  thinks  proper ;  provided  it  be  not  a  period  beyond  the 
annual  meeting  of  the  Legislature. 

SEC.  XII.  In  case  of  the  death,  impeachment,  resignation  or  removal  of  the 
Governor  from  office,  the  Speaker  of  the  Senate  shall  exercise  the  office  of  Gov- 
ernor until  he  be  acquitted,  or  another  Governor  shall  be  duly  qualified.  In  case 
of  the  impeachment  of  the  Speaker  of  the  Senate,  or  his  death,  removal  from 
office,  resignation,  or  absence  from  the  State,  the  Speaker  of  the  House  of  Repre- 
sentatives shall  succeed  to  the  office,  and  exercise  the  duties  thereof,  until  a  Gov- 
ernor shall  be  elected  and  qualified. 

SEC.  XIII.  No  member  of  Congress,  or  person  holding  any  office  under  the 
United  States,  or  this  State,  shall  execute  the  office  of  Governor. 

SEC.  XIV.  There  shall  be  a  seal  of  this  State,  which  shall  be  kept  by  the  Gov- 
ernor, and  used  by  him  officially,  and  shall  be  called  "  The  Great  Seal  of  the  State 
of  Ohio." 

SEC.  XV.   All  grants  and  commissions  shall  be  in  the  name  and  by  the  authority 


404  CONSTITUTION  OF 

of  the  State  of  Ohio,  sealed  with  the  seal,  signed  by  the  Governor,  and  countersign- 
ed by  the  Secretary. 

SEC.  XVI.  A  Secretary  of  State  shall  be  appointed  by  joint  ballot  of  the  Senate 
and  House  of  Representatives,  who  shall  continue  in  office  three  years,  if  ho  shall 
so  long  behave  himself  well ;  he  shall  keep  a  fair  register  of  the  official  acts  and 
proceedings  of  the  Governor,  and  shall,  when  required,  lay  the  same,  and  all  papers, 
minutes  and  vouchers  relative  thereto,  before  either  branch  of  the  Legislature ;  and 
shall  perform  such  other  duties  as  shall  be  assigned  him  by  law. 

ARTICLE  III. 

SECTION  I.  The  Judicial  power  of  this  State,  both  as  to  matters  of  law  and 
equity,  shall  be  vested  in  a  Supreme  Court,  in  Courts  of  Common  Pleas  for  each 
county,  in  Justices  of  the  Peace,  and  in  such  other  courts  as  the  Legislature  may, 
from  time  to  time,  establish. 

Sic.  II.  The  Supreme  Court  shall  consist  of  three  Judges,  any  two  of  whom 
shall  be  a  quorum.  They  shall  have  original  and  appellate  jurisdiction,  both  in 
common  law  and  chancery,  in  such  cases  as  shall  be  directed  by  law ;  provided 
that  nothing  herein  contained  shall  prevent  the  General  Assembly  from  adding 
another  Judge  to  the  Supreme  Court,  after  the  term  of  five  years,  in  which  case 
the  Judge  may  divide  the  State  into  two  circuits,  within  which  any  two  of  the 
Judges  may  hold  a  Court. 

SEC.  III.  The  several  Courts  of  Common  Pleas  shall  consist  of  a  President  and 
Associate  Judges.  The  State  shall  be  divided  by  law  into  three  circuits.  There 
shall  be  appointed  in  each  circuit,  a  President  of  the  Courts,  who,  during  his  con- 
tinuance in  office,  shall  reside  therein.  There  shall  be  appointed  in  each  county, 
not  more  than  three  nor  less  than  two  Associate  Judges,  who,  during  their  contin- 
uance in  office,  shall  reside  therein.  The  President  and  Associate  Judges,  in  their 
respective  counties,  any  three  of  whom  shall  be  a  quorum,  shall  compose  the  Court 
of  Common  Pleas,  which  Court  shall  have  common  law  and  chancery  jurisdiction 
in  all  such  cases  as  shall  be  directed  by  law :  provided  that  nothing  herein  con- 
tained shall  be  construed  to  prevent  the  Legislature  from  increasing  the  number  of 
circuits  and  Presidents,  after  the  term  of  five  years. 

SEC.  IV.  The  Judge  of  the  Supreme  Court  and  Courts  of  Common  Pleas,  shall 
have  complete  criminal  jurisdiction  in  such  cases  and  in  such  manner  as  may  be 
pointed  out  by  law. 

SEC.  V.  The  Court  of  Common  Pleas  in  each  county  shall  have  jurisdiction  of 
all  probate  and  testamentary  matters,  granting  administration,  the  appointment  of 
guardians,  and  such  other  cases  as  shall  be  prescribed  by  law. 

SEC.  VI.  The  Judges  of  the  Court  of  Common  Pleas  shall,  within  their  respec- 
tive counties,  have  the  same  powers  with  the  Judges  of  the  Supreme  Court,  to  is- 
sue writs  of  certiorari  to  the  Justices  of  the  Peace,  and  to  cause  their  proceedings 
to  be  brought  before  them,  and  the  like  right  and  justice  to  be  done. 

SEC.  VII.   The  Judges  of  the  Supreme  Court  shall,  by  virtue  of  their  offices,  be 


OHIO  405 

conservators  of  the  peace  throughout  the  State.  The  Presidents  of  the  Courts  of 
Common  Pleas  shall,  by  virtue  of  their  offices,  be  conservators  of  the  peace  in  their 
respective  circuits;  and  the  Judges  of  the  Court  of  Common  Pleas  shall,  by  virtue 
of  their  offices,  be  conservators  of  the  peace  in  their  respective  counties. 

SEC.  VIII.  The  Judges  of  the  Surpeme  Court,  the  Presidents  and  the  Asso- 
ciate Judges  of  the  Courts  of  Common  Pleas,  shall  be  appointed  by  joint  ballot  of 
both  Houses  of  the  General  Assembly,  and  shall  hold  their  offices  for  the  term  of 
seven  years,  if  so  long  they  behave  well.  The  Judges  of  the  Supreme  Court,  and 
the  Presidents  of  the  Courts  of  Common  Pleas,  shall,  at  stated  times,  receive  for 
their  services  un  adequate  compensation,  to  be  fixed  by  law,  which  shall  not  be  di- 
minished during  their  continuance  in  office ;  but  they  shall  receive  no  fees  or  per- 
quisites of  office",  nor  hold  any  other  office  of  profit  or  trust,  under  the  authority  of 
this  State  or  the  United  States. 

SEC.  IX.  Each  court  shall  appoint  its  own  Clerk,  for  the  term  of  seven  years; 
but  no  person  shall  be  appointed  Clerk,  except  pro  tempore,  who  shall  not  produce 
to  the  court  appointing  him,  a  certificate  from  a  majority  of  the  Judges  of  the  Su- 
preme Court,  that  they  judge  him  to  be  well  qualified  to  execute  the  duties  of  the 
office  of  Clerk  to  any  court  of  the  same  dignity  with  that  for  which  he  offers  him- 
self. They  shall  be  removable  for  breach  of  good  behavior,  at  any  time,  by  the 
Judges  of  the  respective  courts. 

SEC.  X.  The  Supreme  Court  shall  be  held  once  a  year,  in  each  county,  and  the 
Court  of  Common  Pleas  shall  be  holden  in  each  county,  at  such  times  and  places 
as  shall  be  prescribed  by  law. 

SEC.  XL  A  competent  number  of  Justices  of  the  Peace  shall  be  elected  by  the 
qualified  electors  in  each  township  in  the  several  counties,  and  shall  continue  in  of- 
fice three  years,  whose  powers  and  duties  shall  from  time  to  time  be  regulated  and 
defined  by  law. 

SEC.  XII.  The  style  of  all  process  shall  be  "  The  State  of  Ohio ;"  all  prosecu- 
tions shall  be  carried  on  in  the  name  and  by  the  authority  of  the  State  of  Ohio ;  and 
all  indictments  shall  conclude  "against  the  peace  and  dignity  of  the  same." 

ARTICLE  IV. 

SEC.  1.  In  all  elections,  all  white  male  inhabitants  above  the  age  of  twenty-one 
years,  having  resided  in  the  State  one  year  next  preceding  the  election,  and  who 
have  paid  or  are  charged  with  a  State  or  county  tax,  shall  enjoy  the  right  of  an 
elector ;  but  no  person  shall  be  entitled  to  vote,  except  in  the  county  or  district  in 
which  he  shall  actually  reside  at  the  time  of  the  election. 

SEC.  II.   All  elections  shall  be  by  ballot. 

SEC.  III.  Electors  shall,  in  all  cases,  except  treason,  felony,  or  breach  of  the 
peace,  be  privileged  from  arrest  during  their  attendance  at  elections,  and  in  going 
to  and  returning  from  the  same. 

SEC.  IV.  The  Legislature  shall  have  full  power  to  exclude  from  the  privilege 
of  electing,  or.  being  elected,  any  person  convicted  of  bribery,  perjury  or  any  other 
infamous  crime. 


406  CONSTITUTION  OF 

SEC.  V.  Nothing  contained  in  this  article  shall  be  so  construed  as  to  prevent 
white  male  persons  above  the  age  of  twenty  one  years,  who  are  compelled  to  labor 
on  the  roads  of  their  respective  townships  or  counties,  and  who  have  resided  one 
year  in  the  State,  from  having  the  right  of  an  elector. 

ARTICLE  V. 

SECTION  I.  Captains  and  subalterns  in  the  militia  shall  be  elected  by  those  per- 
sons in  their  respective  company  districts,  subject  to  military  duty. 

SEC.  II.    Majors  shall  be  elected  by  the  captains  and  subalterns  of  the  battalion. 

SEC.  III.  Colonels  shall  be  elected  by  the  majors,  captains  and  subalterns  of  the 
regiment. 

SEC.  IV.  Brigadiers  general  shall  be  elected  by  the  commissioned  officers  of 
their  respective  brigades. 

SEC.  V.  Majors  general  and  quarter-masters  general  shall  be  appointed  by  joint 
ballot  of  both  Houses  of  the  Legislature. 

SEC.  VI.  The  Governor  shall  appoint  the  adjutant  general.  The  majors  gen- 
eral shall  appoint  their  aids  and  other  division  staff  officers.  The  brigadiers  gen- 
eral shall  appoint  their  brigade  majors,  and  other  brigade  staff  officers.  The  com- 
manding officers  of  regiments  shall  appoint  their  adjutants,  quarter-masters,  and 
other  regimental  staff  officers.  The  commanding  officers  of  regiments  shall  appoint 
their  adjutants,  quarter-masters,  and  other  regimental  staff  officers ;  and  the  cap- 
tains and  subalterns  shall  appoint  their  non-commissioned  officers  and  musicians. 

SEC.  VII.  The  captains  and  subalterns  of  the  artillery  and  cavalry  shall  be 
elected  by  the  persons  enrolled  in  their  respective  corps ;  and  the  Majors  and 
Colonels  shall  be  appointed  in  such  manner  as  shall  be  directed  by  law.  The 
colonels  shall  appoint  their  regimental  staff;  and  the  captains  and  .-ubalterns  their 
non-commissioned  officers  and  musicians. 

ARTICLE  VI. 

SECTION  I.  There  shall  be  elected  in  each  county,  one  sheriff  and  one  coroner, 
by  the  citizens  thereof,  who  are  qualified  to  vote  for  members  of  the  Assembly  ; 
they  shall  be  elected  at  the  time  and  place  of  holding  elections  for  members  of  As- 
sembly ;  they  shall  continue  in  office  two  years,  if  they  shall  so  long  behave  well, 
until  successors  be  chosen  and  duly  qualified,  provided  that  no  person  shall  be 
eligible  as  sheriff  for  a  longer  term  than  four  years  in  any  term  of  six  years. 

SEC.  II.  The  State  Treasurer  and  Auditor  shall  be  triennially  appointed  bv  a 
joint  ballot  of  both  Houses  of  the  Legislature. 

SEC.  III.  All  town  and  township  officers  shall  be  chosen  annually  by  the  inhab- 
itants thereof  duly  qualified  to  vote  for  members  of  Assembly,  at  such  time  and 
place  as  may  be  directed  by  law. 

SEC.  IV.  The  appointment  of  all  civil  officers  not  otherwise  directed  by  this 
Constitution  shall  be  made  in  such  manner  as  may  be  directed  by  law. 


OHIO.  407 


ARTICLE  VII. 

SEC.  I.  Every  person  who  shall  be  chosen  or  appointed  to  any  office  of  trust  or 
profit  under  the  authority  of  this  State,  shall,  before  entering  on  the  execution  there- 
of, take  an  oath  or  affirmation  to  support  the  Constitution  of  the  United  States  and 
of  this  State,  and  also  an  oath  of  office. 

SEC.  II.  Any  elector  who  shall  receive  any  gift  or  reward  for  his  vote,  in  meat, 
drink,  money  or  otherwise,  shall  suffer  such  punishment  as  the  laws  shall  direct ; 
and  any  person  who  shall,  directly  or  indirectly,  give,  promise,  or  bestow  any  such 
reward  to  be  elected,  shall  thereby  be  rendered  incapable  for  two  years  to  serve  in 
the  office  for  which  he  was  elected,  and  be  subject  to  such  other  punishment  as 
shall  be  directed  by  law. 

SEC.  III.  No  now  count\  shall  be  established  by  the  General  Assembly  which 
shall  reduce  the  county  or  counties,  or  either  of  them,  from  which  it  shall  be  taken, 
to  1.,-ss  contents  than  four  hundred  square  miles;  nor  shall  any  county  be  laid  off  of 
less  contents.  Every  new  county,  as  to  the  right  of  suffrage  and  representation, 
shall  be  considered  as  a  part  of  the  county  or  counties  from  which  it  is  taken,  until 
entitled  by  numbers  to  the  right  of  representation. 

SF.C.  IV.  Chillicothe  shall  be  the  seat  of  government,  until  the  year  one  thousand 
eight  hundred  and  eight.  No  money  shall  be  raised  until  the  year  one  thousand 
eight  hundred  and  nine,  by  the  Legislature  of  this  State,  for  the  purpose  of  erecting 
public  buildings  for  the  ncconi:noilation  of  the  Legislature. 

SKC.  V.  That  after  the  year  one  thousand  right  hundred  arid  six,  whenever  two- 
tin,,  U  ot  tiio  General  Assembly  shall  think  it  necessary  to  amend  or  change  this 
••tution,  they  sh:ill  recommend  to  the  electors,  at  the  next  election  for  mem- 
bers to  the  General  Assembly,  to  vote  for  or  against  a  Convention,  and  if  it  shall 
appear  that  a  majority  of  the  citizens  of  the  State,  voting  for  representatives,  havo 
voted  for  a  Convention,  the  General  Assembly  shall,  at  their  next  session,  call  a 
Convention,  to  consist  of  as  many  members  as  there  bo  in  the  General  Assembly, 
to  be  chosen  in  the  same,  manner,  at  the  same  place,  and  by  the  same  electors  that 
choose  the  General  Assembly,  who  shall  meet  within  three  months  after  the  said 
election  for  the  purpose  of  revising,  amending,  or  changing  the  Constitution.  But 
no  alteration  of  the  Constitution  shall  ever  take  place  so  as  to  introduce  slavery  or 
involuntary  servitude  into  the  State. 

[Here  follows  the  boundary  of  the  State.] 

ARTICLE  VIII. 

That  the  general,  groat  and  essential  principles  of  liberty  and  free  government 
m:iv  be  recognized,  and  forever  unalterably  established,  we  declare: 

SECTION  I.  That  all  men  are  born  equally  free  and  independent,  and  have  cer- 
tain natural,  inherent  and  inalienable  rights,  amongst  which  are  the  enjoying  and 
defending  life  and  liberty,  acquiring,  possessing,  and  protecting  property,  and  pur- 
suing and  obtaining  happiness  and  safety ;  and  every  free  republican  government, 


408  CONSTITUTION  OF 

being  founded  on  their  sole  authority,  and  organized  for  the  great  purpose  of  pro- 
tecting their  rights  and  liberties,  and  securing  their  independence :  to  effect  these 
ends,  they  have  at  all  times  a  complete  power  to  alter,  reform  or  abolish  their  gov- 
ernment, whenever  they  may  deem  it  necessary. 

SEC.  IE.  There  shall  be  neither  slavery  nor  involuntary  servitude  in  this  State, 
otherwise  than  for  the  punishment  of  crime,  whereof  the  party  shall  have  been  duly 
convicted;  nor  shall  any  male  person,  arrived  at  the  age  of  twenty-one  years,  or  fe- 
male person,  arrived  at  the  age  of  eighteen  years,  be  held  to  serve  any  person  as  a 
servant,  under  the  pretense  of  indenture,  or  otherwise,  unless  such  person  shall  en- 
ter into  such  indenture  while  in  a  state  of  perfect  freedom,  and  on  condition  of  a 
bona  fide  consideration,  received  or  to  be  received  for  their  service,  except  as  be- 
fore excepted.  Nor  shall  any  indenture  of  any  negro  or  mulatto  hereafter  made 
and  executed  out  of  the  State,  or  if  made  in  the  State,  where  the  term  of  service 
exceeds  one  year,  be  of  the  least  validity,  except  those  given  in  the  case  of  appren- 
ticeships. 

SEC.  III.  That  all  men  have  a  natural  and  indefeasible  right  to  worship  Al- 
mighty God  according  to  the  dictates  of  conscience ;  that  no  human  authority 
can,  in  any  case  whatever,  control  or  interfere  with  the  rights  of  conscience ;  that 
no  man  shall  be  compelled  to  attend,  erect,  or  support  any  place  of  worship,  or  to 
maintain  any  ministry,  against  his  consent;  and  that  no  preference  shall  ever  be 
given  by  law  to  any  religious  society  or  mode  of  worship,  and  no  religious  test  shall 
be  required  as  a  qualification  to  any  office  of  trust  or  profit.  But  religion,  morali- 
ty and  knowledge,  being  essentially  necessary  to  good  government  and  the  happi 
ness  of  mankind,  schools  and  the  means  of  instruction  shall  forever  be  encouraged 
by  Legislative  provision,  not  inconsistent  with  the  rights  of  conscience. 

SEC.  IV.  Private  property  ought  and  ever  shall  be  held  inviolate,  but  always 
subservient  to  the  public  welfare,  provided  a  compensation  in  money  be  made  to 
the  owner. 

SEC.  V.  That  the  people  shall  be  secure  in  their  persons,  houses,  papers  and 
possessions,  from  unwarrantable,  searches  and  seizures  ;  and  that  general  warrants, 
whereby  an  officer  may  be  commanded  to  search  suspected  places  without  probable 
evidence  of  the  fact  committed,  or  to  seize  any  person  or  persons  not  named,  whose 
offences  are  not  particularly  described,  and  without  oath  or  affirmation  are  danger- 
ous to  liberty,  and  shall  not  be  granted. 

SEC.  VI.  That  the  printing  presses  shall  be  open  and  free  to  every  citizen  who 
wishes  to  examine  the  proceedings  of  any  branch  of  government,  or  the  conduct  of 
any  public  officer ;  and  no  law  shall  ever  restrain  the  right  thereof.  Every  citizen 
has  an  indisputable  right  to  speak,  write  or  print  upon  any  subject,  as  he  thinks 
proper,  being  liable  for  the  abuse  of  that  liberty.  In  prosecutions  for  any  publica- 
tion respecting  the  official  conduct  of  men  in  a  public  capacity,  or  where  the  matter 
published  is  proper  for  public  information,  the  truth  thereof  may  always  be  given  in 
evidence ;  and  in  all  indictments  for  libels,  the  jury  shall  have  the  right  to  deter- 
mine the  law  and  the  facts,  under  the  direction  of  the  courts,  as  in  other  cases. 


OHIO.  409 

SEC.  VII.  That  all  courts  shall  be  open,  and  every  person,  for  an  injury  done 
him  in  his  lands,  goods,  person  or  reputation,  shall  have  remedy  by  the  due  course 
of  law  and  right  and  justice,  administered  without  denial  or  delay. 

SEC.  VIII.    That  the  right  of  trial  by  jury  shall  be  inviolate. 

SEC.  IX.  That  no  power  of  suspending  laws  shall  be  exercised,  unless  by  the 
Legislature. 

SEC.  X.  That  no  person  arrested  or  confined  in  jail  shall  be  treated  with  un- 
necessary rigor,  or  be  put  to  answer  any  criminal  charge,  but  by  presentment,  in- 
dictment or  impeachment. 

SEC.  XL  That  in  all  criminal  prosecutions,  the  accused  hath  a  right  to  be  heard 
by  himself,  and  his  counsel  to  demand  the  nature  and  cause  of  the  accusation 
against  him,  and  to  have  a  copy  thereof;  to  meet  the  witnesses  face  to  face ;  to 
have  compulsory  process  for  obtaining  witnesses  in  his  favor ;  and  in  prosecution* 
by  indictment  or  presentment,  a  speedy  public  trial,  by  an  impartial  jury  of  the 
county  or  district  in  which  the  offence  shall  have  been  committed ;  and  shall  not  b« 
compelled  to  give  evidence  against  himself,  nor  shall  he  be  twice  put  in  jeopardy 
fur  the  same  offence. 

SEC.  XII.  That  all  persons  shall  be  bailable  by  sufficient  sureties,  unless  for 
capital  offences,  where  the  proof  is  evident  or  the  presumption  great ;  the  privilege 
of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless  when  in  case  of  rebel- 
lion or  invasion  the  public  safety  may  require  it. 

SEC.  XIII.  Excessive  bail  shall  not  be  required;  excessive  fines  shall  not  bo 
imposed ;  nor  cruel  and  unusual  punishment  inflicted* 

SEC.  XIV.  All  penalties  shall  be  proportioned  to  the  nature  of  the  offence.  No 
wise  Legislature  will  affix  the  same  punishment  to  the  crime  of  theft,  forgery  and 
the  like,  which  they  do  to  those  of  murder  and  treason.  When  the  same  undistin- 
guished severity  is  excited  against  all  offences,  the  people  are  led  to  forget  the  real 
distinction  in  the  crimes  themselves,  and  to  commit  the  most  flagrant  with  as  littlo 
compunction  as  they  do  the  slightest  offences.  For  the  same  reasons,  a  multitude 
of  sanguinary  laws  are  both  impolitic  and  unjust ;  the  true  design  of  all  punishments 
being  to  reform,  not  to  exterminate  mankind. 

SEC.  XV.  The  person  of  a  debtor,  where  there  is  not  strong  presumption  of 
fraud,  shall  not  be  continued  in  prison  after  delivering  up  his  estate  for  the  benefit 
of  his  creditor  or  creditors,  in  such  manner  as  shall  be  prescribed  by  law. 

SEC.  XVI.  No  expost  facto  law,  nor  any  law  impairing  the  validity  of  contract?, 
shall  ever  be  made,  and  no  conviction  shall  work  corruption  of  blood  or  forfeitura 
of  estate. 

SEC.  XVII.  That  no  person  shall  be  liable  to  be  transported  out  of  this  State, 
for  any  offence  committed  within  the  State. 

SEC.  XVIII.  That  a  frequent  recurrence  to  the  fundamental  principles  of  civil 
government  is  absolutely  necessary  to  preserve  the  blessings  of  liberty. 

SEC.  XIX.    That  the  people  have  a  right  to  assemble  together  in  a  p«aoeabi« 

19 


410  CONSTITUTION  OF  OHIO. 

manner,  to  consult  for  their  common  good,  to  instruct  their  representatives,  and  to 
apply  to  the  Legislature  for  a  redress  of  grievances. 

SEC.  XX.  That  the  people  have  a  right  to  bear  arms  for  the  defence  of  them- 
selves and  the  State ;  and  as  standing  armies  in  time  of  peace  are  dangerous  to 
liberty,  they  shall  not  be  kept  up ;  and  that  the  military  shall  be  kept  under  strict 
subordination  to  the  civil  powers. 

SEC.  XXI.  That  no  person  in  this  State,  except  such  as  are  employed  in  the 
army  or  navy  of  the  United  States,  or  militia  in  actual  service,  shall  be  subject  to 
corporal  punishment,  under  the  military  law. 

SEC.  XXII.  That  no  soldier,  in  time  of  peace,  be  quartered  in  any  house,  with- 
out the  consent  of  the  owner ;  nor  in  time  of  war,  but  in  the  manner  prescribed  by 
law. 

SEC.  XXIII.  That  the  levying  taxes  by  the  poll  is  grievous  and  oppressive; 
therefore,  the  Legislature  shall  never  levy  a  poll  tax  for  county  or  State  purposes. 

SEC  XXIV.  That  no  hereditary  emoluments,  privileges,  or  honors  shall  ever  be 
granted  or  conferred  by  this  State. 

SEC.  XXV.  That  no  law  shall  be  passed  to  prevent  the  poor  in  the  several 
counties  and  townships  within  this  State  from  an  equal  participation  in  the  schools, 
academies,  colleges  and  universities  within  this  State,  which  are  endowed,  in  whole 
or  in  part,  from  the  revenue,  arising  from  donations  made  by  the  United  States  for 
the  support  of  schools  and  colleges;  and  the  doors  of  the  said  schools,  academies, 
and  universities,  shall  be  open  for  the  reception  of  scholars,  students  and  teachers 
of  every  grade,  without  any  distinction  or  preference  whatever,  contrary  to  the  intent 
for  which  said  donations  were  made. 

SEC.  XXVI.  That  laws  shall  be  passed  by  the  Legislature  which  shall  secure  to 
each  and  every  denomination  of  religious  societies  in  each  surveyed  township  which 
now  is,  or  may  hereafter  be,  formed  in  this  State,  an  equal  participation,  according 
to  their  number  of  adherents,  of  the  profit  arising  from  the  land  granted  by  Con- 
gress for  the  support  of  religion,  agreeably  to  the  ordinance  or  act  of  Congress 
making  the  appropriation. 

SEC.  XXVII.  That  every  association  of  persons,  when  regularly  formed  within 
this  State,  and  having  given  themselves  a  name,  may,  on  application  to  the  Legisla- 
ture, be  entitled  to  receive  letters  of  incorporation,  to  enable  them  to  hold  estates, 
real  and  personal,  for  the  support  of  their  schools,  academies,  colleges,  universities, 
and  for  other  purposes. 

SKC.  XXVIII.  To  guard  against  the  transgression  of  the  high  powers,  which 
we  have  delegated,  we  declare  that  all  powers  not  hereby  delegated,  remain  with 
the  people. 

[Here  follows  Schedule,  which  is  omitted.] 

Done  in  Convention  at  Chillicothe,  the  twenty-ninth  day  of  November,  in  the 
year  of  our  Lord  one  thousand  eight  hundred  and  two,  and  of  the  independence  of 
the  United  States  of  America  the  twenty-seventh. 


STATE  OF  INDIANA.  411 


CONSTITUTION 


OP 


THE    STATE   OF   INDIANA- 


WE,  THE  REPRESENTATIVES  of  the  people  of  the  territory  of  Indiana,  in  Con- 
vention met  at  Corydon,  on  Monday,  the  tenth  day  of  June,  in  the  year  of  our  Lord 
one  thousand  eighteen  hundred  and  sixteen,  and  of  the  independence  of  the  United 
States  the  fortieth,  having  the  right  of  admission  into  the  general  government,  as  a 
member  of  the  Union,  consistent  with  the  Constitution  of  the  United  States,  the  or- 
dinance of  Congress  of  one  thousand  seven  hundred  and  eighty-seven,  and  the  law 
of  Congress  entitled  "  An  act  to  enable  the  people  of  Indiana  territory  to  form  a 
Constitution  and  State  Government,  and  for  the  admission  of  such  State  into  the 
Union  on  an  equal  footing  with  the  original  States,"  in  order  to  establish  justice, 
promote  the  welfan1,  and  secure  the  blessings  of  liberty  to  ourselves  and  our  pos- 
terity, do  ordain  and  establish  the  following  Constitution  or  form  of  government ; 
and  do  mutually  agree  with  each  other  to  form  ourselves  into  a  free  and  inde- 
pendent State,  by  the  name  of  THE  STATE  or  INDIANA. 

ARTICLE  I. 

SECTION  I.  That  the  general,  great,  and  essential  principles  of  liberty  and  free 
government  may  be  recognized,  and  unalterably  established :  We  declare,  that  all 
men  are  born  equally  free  and  independent,  and  have  certain  natural,  inherent,  and 
unalienable  rights ;  among  which  are,  the  enjoying  and  defending  life  and  liberty, 
and  of  acquiring,  possessing,  and  protecting  property,  and  pursuing  and  obtaining 
happiness  and  safety. 

SEC.  II.  That  all  power  is  inherent  in  the  people  ;  and  all  free  governments  are 
founded  on  their  authority,  and  instituted  for  their  peace,  safety,  and  happiness. 
For  the  advancement  of  these  ends,  they  have,  at  all  times,  an  unalienable  and  in- 
defeasible right  to  alter  or  reform  their  government  in  such  manner  as  they  may 
think  proper. 

SEC.  III.  That  all  men  have  a  natural  and  indefeasible  right  to  worship  Al- 
mighty God  according  to  the  dictates  of  their  own  conscience.  That  no  man 
shall  be  compelled  to  attend,  erect,  or  support  any  place  of  worship,  or  to  maintain 
any  ministry,  against  his  consent.  That  no  human  authority  can,  in  any  case 


412  CONSTITUTION  OF 

whatever,  control  or  interfere  with  the  rights  of  conscience ;  and  that  no  prefer- 
ence shall  ever  be  given  by  law  to  any  religious  societies  or  modes  of  worship,  and  no 
religious  test  shall  be  required  as  a  qualification  to  any  office  of  trust  or  profit. 

SEC.  IV.    That  elections  shall  be  free  and  equal. 

SKC.  V.  That  in  all  civil  cases,  where  the  value  in  controversy  shall  exceed  tho 
sum  of  twenty  dollars,  and  in  all  criminal  cases,  except  in  petit  misdemeanors, 
which  shall  be  punished  by  fine  only,  not  exceeding  three  dollars,  in  such  manner 
as  the  Legislature  may  prescribe  by  law,  the  right  of  trial  by  jury  shall  remain  in- 
violate. 

SEC.  VI.  That  no  power  of  suspending  the  operation  of  the  laws  shall  be  exer- 
cised, except  by  the  Legislature,  or  its  authority. 

SEC.  VII.  That  no  man's  particular  services  shall  be  demanded,  or  property 
taken  or  applied  to  public  use,  without  the  consent  of  his  representatives,  or  with- 
out a  just  compensation  being  made  therefor. 

SfiC.  VIII.  The  rights  of  the  people  to  be  secure  in  their  persons,  houses,  pa- 
p  u-s  and  effects,  against  unreasonable  searches  and  seizures,  shall  not  be  violated  ; 
and  no  warrant  shall  issue  but  upon  probable  cause,  supported  by  oath  or  affirma- 
tion, and  particularly  describing  the  place  to  be  searched,  and  the  persons  or  things 
to  be  seized. 

SEC.  IX.  That  the  printing  presses  shall  be  free  to  every  person  who  under- 
takes to  examine  the  proceedings  of  the  Legislature,  or  any  branch  of  government  ; 
and  no  law  shall  ever  be  made  to  restrain  the  right  thereof.  The  free  communi- 
cation of  thoughts  and  opinions  is  one  of  the  invaluable  rights  of  man ;  and  every, 
citizen  may  freely  speak,  write,  and  print  on  any  subject,  being  responsible  for  the 
abuse  of  that  liberty. 

SEC.  X.  In  prosecutions  for  the  publication  of  papers  investigating  the  official 
conduct  of  officers  or  men  in  a  public  capacity,  or  where  the  matter  published  ia 
proper  for  the  public  information,  the  truth  thereof  may  be  given  in  evidence  ;  and 
in  all  indictments  for  libels,  the  jury  shall  have  a  right  to  determine  the  law  and  the 
facts,  under  the  direction  of  the  court,  as  in  other  cases. 

SEC.  XI.  That  Courts  shall  be  open,  and  every  person  for  an  injury  done  him,  in 
his  lands,  goods,  person,  or  reputation,  shall  have  remedy  by  the  due  course  of  law ; 
and  right  and  justice  administered  without  denial  or  delay. 

SEC.  XII.  That  no  person  arrested,  or  confined  in  jail,  shall  be  treated  with 
unnecessary  rigor,  or  be  put  to  answer  any  criminal  charge,  but  by  presentment,  in- 
dictment, or  impeachment. 

SKC.  XIII.  That  in  all  criminal  prosecutions,  the  accused  hath  a  i-ight  to  be  heard 
by  himself  and  counsel,  to  demand  the  nature  and  cause  of  the  accusation  against 
him,  and  to  have  a  copy  thereof;  to  meet  the  witnesses  face  to  face,  to  have  com- 
pulsory process  for  obtaining  witnesses  in  his  favor ;  and  in  prosecutions  by  indict- 
ment or  presentment,  a  speedy  public  trial  by  an  impartial  jury  of  the  county  or  dis- 
trict in  which  the  offence  shall  have  been  committed ;  and  shall  not  be  compelled  to 
give  evidence  against  himself,  nor  shall  be  twice  put  in  jeopardy  for  the  same  of- 
fence. 


INDIANA.  413 

SEC.  XIV.  That  all  persons  shall  be  bailable  by  sufficient  sureties,  unless  for 
capital  offences,  when  the  proof  is  evident,  or  the  presumption  great ;  and  the  priv- 
ilege of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless,  in  case  of  rebellion 
or  invasion,  the  public  safety  may  require  it. 

SEC.  XV.  Excessive  bail  shall  not  be  required,  excessive  fines  shall  not  be  im- 
posed, nor  cruel  and  unusual  punishments  inflicted. 

SEC.  XVI.    All  penalties  shall  be  proportioned  to  the  nature  of  the  offence. 

SEC.  XVII.  The  person  of  a  debtor,  where  there  is  not  strong  presumption  of 
fraud,  shall  not  be  continued  in  prison  after  delivering  up  his  estate  for  the  benefit  of 
his  creditor  or  creditors,  in  such  manner  as  shall  be  prescribed  by  law. 

SEC.  XVIII.  No  ex  post  facto  law,  nor  any  law  impairing  the  validity  of  con- 
tracts, shall  ever  be  made;  and  no  conviction  shall  work  corruption  of  blood,  nor 
forfeiture  of  estate. 

SEC.  XIX.  That  die  people  have  a  right  to  assemble  together,  in  a  peaceable 
manner,  to  consult  for  their  common  good,  to  instruct  their  representatives,  and  to 
apply  to  the  Legislature  for  redress  of  grievances. 

SEC.  XX.  That  the  people  have  a  right  to  bear  arms  for  the  defence  of  them- 
selves and  the  State;  and  that  the  military  shall  be  kept  in  strict  subordination  to 
the  civil  power. 

SEC.  XXI.  That  no  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house, 
without  the  consent  of  the  owner;  nor  in  time  of  war,  but  in  a  manner  to  be  pre- 
•cribed  by  law. 

SKC.  XXII.  That  the  Legislature  shall  not  grant  any  title  of  nobility,  or  heredit- 
ary distinction-!,  nor  create  any  ollice,  the  appointment  to  which  shall  be  for  a 
longer  term  than  <jood  behavior. 

SEC.  XXIII.    That  emigration  from  the  State  shall  not  be  prohibited. 

SEC.  XXIV.  To  guard  against  any  encroachments  on  the  rights  herein  retained, 
we  declare,  that  every  thing  in  this  article  is  excepted  out  of  the  general  powers  of 
government,  and  shall  forever  remain  inviolable. 

ARTICLE  II. 

The  powers  of  the  government  of  Indiana,  shall  be  divided  into  three  distinct 
departments,  and  each  of  them  be  confided  to  a  separate  body  of  magistracy,  to 
wit :  those  which  are  legislative  to  one ;  those  which  are  executive,  to  another ; 
and  those  which  arc  judiciary,  to  another;  and  no  person  or  collection  of  persons, 
being  of  one  of  these  departments,  shall  exercise  any  power  properly  attached  to 
either  of  the  others,  except  in  the  instances  herein  expressly  permitted. 

ARTICLE  III. 

SECTION  1.  The  Legislative  authority  of  this  State  shall  be  vested  in  a  General 
Assembly,  which  shall  consist  of  a  Senate  and  House  of  Representatives,  both  to 
be  elected  by  the  people. 

SBC.  II.   The  General  Assembly  may,  within  two  years  after  their  first  meeting, 


414  CONSTITUTION  OF 

< 

and  shall,  in  the  year  eighteen  hundred  and  twenty,  and  every  subsequent  term  of 
five  years,  cause  an  enumeration  to  be  made  of  all  the  white  male  inhabitants  abovo 
the  age  of  twenty-one  years.  The  number  of  representatives  shall  at  the  several 
periods  of  making  such  enumeration,  be  fixed  by  the  General  Assembly,  and  ap- 
portioned among  the  several  counties  according  to  the  number  of  white  male  in- 
habitants above  twenty-one  years  of  age  in  each,  and  shall  never  be  less  than 
twenty-five  nor  greater  than  thirty-six,  until  the  number  of  \\diite  male  inhabitants 
above  twenty-one  years  of  age  shall  be  twenty-two  thousand  :  and  after  that  event, 
at  such  ratio  that  the  whole  number  of  representatives  shall  never  be  less  than 
thirty-six,  nor  exceed  one  hundred. 

SEC.  III.  The  representatives  shall  be  chosen  annually  by  the  qualified  electors 
of  each  county  respectively,  on  the  first  Monday  of  August. 

SEC.  IV.  No  person  shall  be  a  representative  unless  he  shall  have  attained  the 
age  of  twenty-one  years,  and  shall  be  a  citizen  of  the  United  States,  and  an  inhabi- 
tant of  this  State ;  and  shall  also  have  resided  within  the  limits  of  the  county  in 
which  he  shall  be  chosen,  one  year  next  preceding  his  election,  if  the  county  shall 
have  been  so  long  erected ;  but  if  not,  then  within  the  limits  of  the  county  or  coun- 
ties out  of  which  it  shall  have  been  taken,  unless  he  shall  have  been  absent  on  the 
public  business  of  the  United  States  or  of  this  State,  and  shall  have  paid  a  State 
or  county  tax. 

SEC  V.  The  Senators  shall  be  chosen  for  three  years,  on  the  first  Monday  in 
August,  by  the  qualified  voters  for  representatives  ;  and  on  their  being  convened,  in 
consequence  of  the  first  election,  they  shall  be  divided  by  lot,  from  their  respective 
counties  or  districts,  as  near  as  can  be,  into  three  classes.  The  seats  of  the  Sen- 
ators of  the  first  class  shall  be  vacated  at  the  expiration  of  the  first  year,  and  the 
second  class  at  the  expiration  of  the  second  year,  and  of  the  third  class  at  the 
expiration  of  the  third  year;  so  that  one-third  thereof,  as  near  as  possible,  may  bo 
annually  chosen,  forever  thereafter. 

SEC.  V[.  The  number  of  Senators  shall,  at  the  several  periods  of  making  the 
enumeration  before  mentioned,  be  fixed  by  the  General  Assembly,  and  apportioned 
among  the  several  counties  or  districts  to  be  established  by  law,  according  to  the 
number  of  white  male  inhabitants  of  the  age  of  twenty-one  years  in  each,  and  shall 
never  be  less  than  one-third  nor  more  than  one  half  of  the  number  of  representa- 
tives. 

SEC.  VII.  No  person  shall  be  a  Senator,  unless  he  shall  have  attained  the  age 
of  twenty-five  years,  and  shall  be  a  citizen  of  the  United  States;  and  shall,  next 
preceding  the  election,  have  resided  two  years  in  the  State,  the  last  twelve  months 
of  which  in  the  county  or  district  in  which  ho  may  be  elected,  if  the  county  or  dis- 
trict shall  have  been  so  long  erected;  but  if  not,  then  within  the  limits  of  the  coun- 
ty or  counties,  district  or  districts,  out  of  which  the  same  shall  have  been  taken ; 
unless  he  shall  have  been  absent  on  the  public  business  of  the  United  States,  or 
of  this  State;  and  shall,  moreover,  have  paid  a  State  or  county  tax. 

SEC.  VIII.    The  House  of  Representatives,  when  assembled,  shall  choose  a 


INDIANA.  415 

Speaker  and  its  other  officers ;  and  the  Senate  shall  choose  its  officers,  except  the 
President;  and  each  shall  be  judges  of  the  qualifications  and  elections  of  its  mem- 
bers, and  sit  upon  its  own  adjournments.  Two-thirds  of  each  House  shall  consti- 
tute a  quorum  to  do  business,  but  a  smaller  number  may  adjourn  from  day  to  day, 
and  compel  the  attendance  of  absent  members. 

SEC.  IX.  Each  House  shall  keep  a  journal  of  its  proceedings,  and  publish  them ; 
the  yeas  and  nays  of  the  members,  on  any  question,  shall,  at  the  request  of  any  two 
of  them,  be  entered  on  the  journals. 

SEC.  X.  Any  one  member  of  either  House  shall  have  liberty  to  dissent  from, 
and  protest  against,  any  act  or  resolution  which  he  may  think  injurious  to  the 
public,  or  any  individual  or  individuals,  and  have  the  reason  of  his  dissent  entered 
on  the  journals. 

SEC.  XI.  Each  House  may  determine  the  rules  of  its  proceedings,  punish  its 
members  for  disorderly  behavior,  and  with  the  concurrence  of  two-thirds,  expel  a 
member,  but  not  a  second  time  for  the  same  cause ;  and  shall  have  all  other  powers 
necessary  for  a  branch  of  the  Legislature  of  a  free  and  independent  State. 

SKC.  XII.  When  vacancies  happen  in  either  branch  of  the  General  Assembly, 
the  Governor,  or  the  person  exercising  the  power  of  Governor,  shall  issue  writs  of 
election,  to  fill  such  vacancies. 

SEC.  XIII.  Senators  and  Representatives  shall,  in  all  cases,  except  treason, 
felony,  or  bro;uli  of  the  peace,  be  privileged  from  arrest  during  the  session  of  the 
General  Assembly,  and  in  going  to  and  returning  from  the  same;  and  for  any 
speech  or  debate  in  either  House,  they  shall  not  be  questioned  in  any  other  place. 

SEC.  XIV.  Each  House  may  punish  by  imprisonment,  during  their  session,  any 
person  not  a  member,  who  shall  be  guilty  of  any  disrespect  to  the  House,  by  any  dis- 
orderly or  contemptuous  behavior  in  their  presence;  provided  such  imprisonment 
shall  not  at  any  one  time  exceed  twenty-four  hours. 

SEC.  XV.  The  doors  of  each  House,  and  of  committees  of  the  whole,  shall  be 
kept  open,  except  in  such  cases  as,  in  the  opinion  of  the  House,  may  require  secrecy. 
Neither  House  shall,  without  the  consent  of  the  other,  adjourn  for  more  than  two 
days,  nor  to  any  other  place  than  that  in  which  the  two  Houses  shall  be  sitting. 

SEC  XVI.  Bills  may  originate  in  either  House,  but  may  be  altered,  amended  or 
rejected  by  the  other. 

SEC.  XVII.  Every  bill  shall  be  read  on  three  different  days  in  each  House,  un- 
less in  case  of  urgency,  two-thirds  of  the  House,  where  such  bill  may  be  depending, 
shall  deem  it  expedient  to  dispense  with  this  rule :  and  every  bill  having  passed 
both  Houses  shall  be  signed  by  the  President  and  Speaker  of  their  respective 
Houses. 

SEC.  XVIII.  The  style  of  the  laws  of  this  State  shall  be  "  Be  it  enacted,  by  the 
General  Assembly  of  the  State  of  Indiana." 

SEC.  XIX.  All  bills  for  raising  revenue  shall  originate  in  the  House  of  Repre- 
sentatives, but  the  Senate  may  amend  or  reject,  as  in  other  bills. 

SEC.  XX.    No  person,  holding  any  office  under  the  authority  of  the  President  of 


416  CONSTITUTION  OF 

the  United  States,  or  of  this  State,  militia  officers  excepted,  shall  be  eligible  to  a 
seat  in  either  branch  of  the  General  Assembly,  unless  he  resign  his  office  previous 
to  his  election  ;  nor  shall  any  member  of  either  branch  of  the  General  Assembly, 
during  the  time  for  which  he  is  elected,  be  eligible  to  any  office,  the  appointment  of 
which  is  vested  in  the  General  Assembly :  provided,  that  nothing  in  this  Constitu- 
tion shall  be  so  construed  as  to  prevent  any  member  of  the  first  session  of  the  Gen- 
eral Assembly  from  accepting  any  office  that  is  created  by  this  Constitution,  or  the 
Constitution  of  the  United  States,  and  the  salaries  of  which  are  established. 

SEC.  XXI  No  money  shall  be  drawn  from  the  treasury,  but  in  consequence  of 
appropriations  made  by  law. 

SEC.  XXII.  An  accurate  statement  of  the  receipts  and  expenditures  of  the  pub- 
lic money  shall  be  attached  to,  and  published  with,  the  laws,  at  eveiy  annual  ses- 
sion of  the  General  Assembly. 

SEC.  XXIII.  The  House  of  Representatives  shall  have  the  sole  power  of  im- 
peaching ;  but  a  majority  of  all  the  members  elected  must  concur  in  such  impeach- 
ment. All  impeachments  shall  be  tried  by  the  Senate;  and  when  sitting  for  that 
purpose,  the  Senators  shall  be  upon  oath  or  affirmation,  to  do  justice  according  to 
law  and  evidence.  No  person  shall  be  convicted  without  the  concurrence  of  a  ma- 
jority of  all  the  Senators  elected. 

SEC.  XXIV.  The  Governor,  and  all  civil  officers  of  the  State,  shall  be  removed 
from  office,  on  impeachment  for,  and  conviction  of,  treason,  bribery,  or  other  high 
crimes  and  misdemeanors;  but  judgment  in  such  cases  shall  not  extend  further  than 
removal  from  office,  and  disqualification  to  hold  any  office  of  honor,  profit,  or  trust, 
under  this  State.  The  party,  whether  convicted  or  acquitted,  shall,  nevertheless, 
be  liable  to  indictment,  trial,  judgment,  and  punishment  according  to  law. 

SKC.  XXV.  The  first  session  of  the  General  Assembly  shall  com.r>/>nce  on  the 
first  Monday  of  November  next ;  and  forever  after,  the  General  Assembly  shall  meet 
on  the  first  Monday  in  December,  in  every  year,  and  at  no  other  period,  unless 
directed  by  law,  or  provided  for  by  this  Constitution. 

Sic.  XXVI.  No  person,  who  hereafter  may  be  a  Collector  or  holder  of  public 
money,  shall  have  a  seat  in  either  House  of  the  General  Assembly,  until  such  person 
shall  have  accounted  for,  and  paid  into  the  treasury,  all  sums  for  which  he  may 
be  accountable. 

ARTICLE  IV. 

SECTION  I.  The  Supreme  Executive  power  of  this  State  shall  be  vested  in  a 
Governor,  who  shall  be  styled  the  Governor  of  the  State  of  Indiana. 

SKC.  II.  The  Governor  shall  be  chosen  by  the  qualified  electors  on  the  first  Mon- 
day in  August,  at  the  places  where  they  shall  respectively  vote  for  representatives. 
The  returns  of  every  election  for  Governor  shall  be  sealed  up  and  transmitted  to  the 
•eat  of  government,  directed  to  the  Speaker  of  the  House  of  Representatives,  who 
shall  open  and  publish  them,  in  the  presence  of  both  Houses  of  the  General  Assem- 
bly: the  person  having  the  highest  number  of  votes  shall  be  Governor;  but  if 


INDIANA.  417 

two  or  more  shall  bo  equal  and  highest  in  votes,  one  of  them  shall  be  chosen  Gov- 
ernor by  the  joint  vote  of  the  members  of  both  Houses.  Contested  elections  shall 
be  determined  by  a  committee  to  be  selected  from  both  Houses  of  the  General  As- 
sembly, and  formed  and  regulated  in  such  manner  as  shall  be  directed  by  law. 

SEC.  HI.  The  Governor  shall  hold  his  office  during  three  years,  from  and  after 
the  third  day  of  the  first  session  of  the  General  Assembly  next  ensuing  his  election, 
and  until  a  successor  shall  be  chosen  and  qualified,  and  shall  not  be  capable  of 
holding  it  longer  than  six  years,  in  any  term  of  nine  years. 

SEC.  IV.  He  shall  be  at  least  thirty  years  of  age,  and  shall  have  been  a  citizen 
of  the  United  States  ten  years,  and  have  resided  in  the  State  five  years  next  pre- 
ceding his  election,  unless  he  shall  have  been  absent  on  the  business  of  the  State, 
or  of  the  United  States;  provided,  that  this  shall  not  disqualify  any  person  from  the 
office  of  Governor,  who  shall  be  a  citizen  of  the  United  States,  and  shall  have  re- 
sided in  the  Indiana  territory  two  years  next  preceding  the  adoption  of  this  Con- 
stitution. 

SEC.  V.  No  member  of  Congresa,  or  person  holding  any  office  under  the  United 
States,  or  this  State,  shall  exercise  the  office  of  Governor  or  Lieutenant  Governor. 

SEC.  VI.  The  Governor  shall, at  stated  times,  receive  for  his  services  a  compen- 
sation, which  shall  neither  be  increased  nor  diminished,  during  the  term  for  which 
he  shall  have  been  elected. 

SEC.  VII.  He  shall  be  Comnmndcr-in-Chief  of  the  army  and  navy  of  this  State, 
and  of  the  militia  thereof,  except  when  they  shall  be  called  into  the  service  of  the 
United  States;  but  he  shall  not  command  personally  in  the  field,  unless  he  shah1  be 
advised  so  to  do  by  a  resolution  of  the  General  Assembly. 

SEC.  VIII.  He  shall  nominate,  uiul  by  and  with  the  advice  and  consent  of  the 
Senate,  appoint  and  commission  all  officers,  the  appointment  of  which  is  not  other- 
wise directed  by  this  Constitution ;  and  all  offices  which  may  be  created  by  the 
General  Assembly,  shall  be  filled  in  such  manner  as  may  be  directed  by  law. 

SEC.  IX.  Vacancies  that  may  happen  in  offices,  the  appointment  of  which  is 
vested  in  the  Governor  and  Senate,  or  in  the  General  Assembly,  shall  be  filled  by 
the  Governor,  during  the  recess  of  the  General  Assembly,  by  granting  commissions 
that  shall  expire  at  the  end  of  the  next  session. 

SEC.  X.  He  shall  have  power  to  remit  fines  and  forfeitures,  grant  reprieves  and 
pardons,  except  in  cases  of  impeachments. 

SEC.  XL  He  may  require  information,  in  writing,  from  the  officers  in  the  ex- 
ecutive department,  upon  any  subject  relating  to  the  duties  of  their  respective  of- 
fices. 

BJCC.  XII.  He  shall,  from  time  to  time,  give  to  the  General  Assembly,  information 
of  the  affairs  of  the  State,  and  recommend  to  their  consideration  such  measures  as 
he  shall  deem  expedient. 

SEC.  XIII.  He  may,  on  extraordinary  occasions,  convene  the  General  Assem- 
bly at  the  seat  of  government,  or  at  a  different  place,  if  that  shall  have  become 
since  their  last  adjournment,  dangerous  from  an  enemy,  or  from  contagious  disorders, 


418  CONSTITUTION  OF 

and  in  case  of  a  disagreement  between  the  two  Houses,  with  respect  to  the  time 
of  adjournment,  adjourn  them  to  such  time  as  he  shall  think  proper,  not  beyond 
the  time  of  their  next  annual  session. 

SEC.  XIV.    He  shall  take  care  that  the  laws  be  faithfully  executed. 

SEC.  XV.  A  Lieutenant  Governor  shall  be  chosen  at  every  election  for  a  Gov- 
ernor, in  the  same  manner,  continue  in  office  for  the  same  time,  and  possess  the 
same  qualifications.  In  voting  for  Governor  and  Lieutenant  Governor,  the  electors 
shall  distinguish  whom  they  vote  for  as  Governor,  and  whom  as  Lieutenant  Gov- 
ernor. 

SEC.  XVI.  He  shall,  by  virtue  of  his  office,  be  President  of  the  Senate,  have  a 
right,  when  in  committee  of  the  whole,  to  debate,  and  vote  on  all  subjects,  and  when 
the  Senate  are  equally  divided,  to  give  the  casting  vote. 

SEC.  XVII.  In  case  of  impeachment  of  the  Governor,  his  removal  from  office,  death, 
refusal  to  qualify,  resignation,  or  absence  from  the  State,  the  Lieutenant  Governor 
shall  exercise  all  the  powers  and  authority  appertaining  to  the  office  of  Governor, 
until  another  be  duly  qualified,  or  the  Governor  absent  or  impeached,  shall  return, 
or  be  acquitted. 

SEC.  XVIII.  Whenever  the  government  shall  be  administered  by  the  Lieutenant 
Governor,  or  he  shall  be  unable  to  attend  as  President  of  the  Senate,  the  Senate 
shall  elect  one  of  their  own  members  as  President  for  that  occasion.  And  if,  during 
the  vacancy  of  the  office  of  Governor,  the  Lieutenant  Governor  shall  be  impeached, 
removed  from  office,  refuse  to  qualify,  resign,  die,  or  be  absent  from  the  State,  the 
President  of  the  Senate  pro  tern,  shall,  in  like  manner,  administer  the  erovernment, 
until  he  shall  be  superseded  by  a  Governor,  or  Lieutenant  Governor.  The  Lieu- 
tenant Governor,  while  he  acts  as  President  of  the  Senate,  shall  receive  for  his  ser- 
vices the  same  compensation  which  shall,  for  the  same  period,  be  allowed  to  the 
Speaker  of  the  House  of  Representatives,  and  no  more :  and  during  the  time  he 
administers  the  government,  as  Governor,  shall  receive  the  same  compensation 
which  the  Governor  would  have  received  and  been  entitled  to,  had  he  been  em- 
ployed in  the  duties  of  his  office,  and  no  more. 

SEC.  XIX.  The  President  pro  lempore  of  the  Senate,  during  the  time  he  admin- 
isters the  govemment,  shall  receive,  in  like  manner,  the  same  compensation  which 
the  Governor  would  have  received,  had  he  been  employed  in  the  duties  of  his  office, 
and  no  more. 

SEC.  XX.  If  the  Lieutenant  Governor  shall  be  called  upon  to  administer  the 
government,  and  shall,  while  in  such  administration,  resign,  die,  or  be  absent  from 
the  State,  during  the  recess  of  the  General  Assembly,  it  shall  be  the  duty  of  the 
Secretary  of  State,  for  the  time  being,  to  convene  the  Senate  for  the  purpose  of 
choosing  a  President  pro  tempore. 

SEC.  XXI.  A  Secretary  of  State  shall  be  chosen  by  the  joint  ballot  of  both  Houses 
of  the  General  Assembly,  and  be  commissioned  by  the  Governor  for  four  years,  or  un- 
til a  new  Secretary  be  chosen  and  qualified.  He  shall  keep  a  fair  register,  and 
attest  all  the  official  acts  and  proceedings  of  the  Governor,  and  shall,  when  required, 


INDIANA.  419 

lay  the  same,  and  all  papers,  minutes  and  vouchers  relative  thereto,  before  either 
House  of  the  General  Assembly ;  and  shall  perform  such  other  duties  as  may  be 
enjoined  him  by  law. 

SEC.  XXII.  Every  bill  which  shall  have  passed  both  Houses  of  the  General 
Assembly,  shall  be  presented  to  the  Governor :  if  he  approve,  he  shall  sign  it ;  but 
if  not,  he  shall  return  it  with  his  objections,  to  the  House  in  which  it  shall  have 
originated,  who  shall  enter  the  objections  at  large  upon  their  journals,  and  proceed 
to  reconsider  it.  If,  after  such  reconsideration,  a  majority  of  all  the  members 
elected  to  that  House  shall  agree  to  pass  the  bill,  it  shall  be  sent,  with  the  objections, 
to  the  other  House,  by  which  it  shall  likewise  be  reconsidered,  and  if  approwd  by 
a  majority  of  all  the  members  elected  to  that  House,  it  shall  lie  a  law ;  but,  in  such 
cases,  the  votes  of  both  Houses  shall  be  determined  by  yeas  and  nays,  and  the  names 
of  the  persons  voting  for  and  against  the  bill,  shall  be  entered  on  the  journals  of 
each  House  respectively.  If  any  bill  shall  not  be  returned  by  the  Governor  within 
five  days.  (Sundays  excepted,)  after  ;t  shall  have  been  presented  to  him,  it  shall  be 
a  law,  in  like  manner  as  if  he  had  signed  it,  unless  the  general  adjournment  prevents 
its  return ;  in  which  case  it  shall  be  a  law,  unless  sent  back  within  three  days  after 
their  next  meeting. 

SEC.  XXIII.  Every  resolution  to  which  the  concurrence  of  both  Houses  may  be 
necessary,  shall  be  presented  to  the  Governor,  and,  before  it  shall  take  effect,  be 
approved  by  him ;  or,  being  disapproved,  shall  be  re-passed  by  a  majority  of  all  the 
members  elected  to  both  Houses,  according  to  the  rules  and  limitations  prescribed 
in  case  of  a  bill. 

SEC.  XXIV.  There  shall  be  elected,  by  joint  ballot  of  both  Houses  of  the  Gen- 
eral Assembly,  a  Treasurer  and  Auditor,  whose  powers  and  duties  shall  be  prescribed 
by  law,  and  who  shall  hold  their  offices  for  three  years,  and  until  their  successors  be 
appointed  and  qualified. 

SEC.  XXV.  There  shall  be  elected  in  each  county,  by  the  qualified  elector* 
thereof,  one  Sheriff  and  one  Coroner,  at  the  times  and  places  of  holding  elections 
for  members  of  the  General  Assembly.  They  shall  continue  in  office  two  years, 
and  until  successors  shall  be  chosen  and  duly  qualified:  provided,  that  no  person 
ehall  be  eligible  to  the  office  of  Sheriff  more  than  four  years,  in  any  term  of  six 
years. 

SEC.  XXVI.  There  shall  be  a  seal  of  this  State,  which  shall  be  kept  by  the  Gov- 
ernor, and  used  by  him  officially,  and  shall  be  called  "  The  Seal  of  the  State  of 
Indiana." 

ARTICLE  V. 

SECTION  I.  The  Judiciary  power  of  this  State,  both  as  to  matters  of  law  and 
equity,  shall  be  vested  in  one  Supreme  Court,  in  Circuit  Courts,  and  in  such  other 
inferior  courts  as  the  General  Assembly  may,  from  time  to  time,  direct  and  establish. 

SEC.  II.  The  Supreme  Court  shall  consist  of  three  Judges,  any  two  of  whom 
•hall  form  a  quorum,  and  shall  have  appellate  jurisdiction  only,  which  shall  be  co- 


420  CONSTITUTION  OF 

extensive  with  the  limits  of  the  State,  under  such  restrictions  and  regulations,  not 
repugnant  to  this  Constitution,  as  may  from  time  to  time  be  prescribed  by  law : 
provided,  nothing  in  this  article  shall  be  so  construed  as  to  prevent  the  General  As- 
sembly from  giving  the  Supreme  Court  original  jurisdiction  in  capital  cases,  and 
cases  in  chancery  where  the  President  of  the  Circuit  Court  may  be  interested  or 
prejudiced. 

SEC.  III.  The  Circuit  Courts  shall  each  consist  of  a  President  and  two  Associate 
Judges.  The  State  shall  be  divided  by  law  into  three  circuits,  for  each  of  which  a 
President  shall  be  appointed,  who,  during  his  continuance  in  office,  shall  reside 
therein.  The  President  and  Associate  Judges,  in  their  respective  counties,  shall 
have  common  law  and  chancery  jurisdiction,  as  also  complete  criminal  jurisdiction, 
in  all  such  cases,  and  in  such  manner  as  may  be  prescribed  by  law.  The  President 
alone,  in  the  absence  of  the  Associate  Judges,  or  the  President  and  one  of  the  As 
sociate  Judges,  in  the  absence  of  the  other,  shall  be  competent  to  hold  a  court,  as 
also  the  two  Associate  Judges,  in  the  absence  of  the  President,  shall  be  competent 
to  hold  a  court,  except  in  capital  cases,  and  cases  in  chancery :  provided,  that 
nothing  herein  contained  shall  prevent  the  general  Assembly  from  increasing  tho 
number  of  circuits  and  Presidents,  as  the  exigencies  of  the  State  may,  from  time  to 
time,  require. 

SEC.  IV.  The  Judges  of  the  Supreme  Court,  the  Circuit  and  other  inferior  courts, 
shall  hold  their  offices  during  the  term  of  seven  years,  if  they  shall  so  long  behave 
well ;  and  shall,  at  stated  times,  receive  for  their  services,  a  compensation  which 
shall  not  be  diminished  dm*ing  their  continuance  in  office. 

SEC.  V.  The  Judges  of  the  Supreme  Court  shall,  by  virtue  of  their  offices,  be 
conservators  of  the  peace  throughout  the  State,  as  also  the  Presidents  of  the  Cir- 
cuit Courts  in  their  respective  circuits,  and  the  Associate  Judges  in  their  respective 
counties. 

SEC.  VI.  The  Supreme  Court  shall  hold  its  sessions  at  the  seat  of  government, 
at  such  times  as  shall  be  prescribed  by  law ;  and  the  Circuit  Courts  shall  be  held  in 
the  respective  counties  as  may  be  directed  by  law. 

SEC.  VII.  The  Judges  of  the  Supreme  Court  shall  be  appointed  by  the  Gov- 
ernor, by  and  with  the  advice  and  consent  of  the  Senate.  The  Presidents  of  the 
Circuit  Courts  shall  be  appointed  by  joint  ballot  of  both  branches  of  the  General 
Assembly ;  and  the  Associate  Judges  of  the  Circuit  Courts,  shall  be  elected  by  the 
qualified  electors  in  the  respective  counties. 

SEC.  VIII.  The  Supreme  Court  shall  appoint  its  own  Clerk,  and  the  Clerks  of 
the  Circuit  Court,  in  the  several  counties,  shall  be  elected  by  the  qualified  electors 
in  the  several  counties;  but  no  person  shall  be  eligible  to  the  office  of  Clerk  of  the 
Circuit  Court  in  any  county,  unless  he  shall  first  have  obtained,  from  one  or  more 
of  the  Judges  of  the  Supreme  Court,  or  from  one  or  more  of  the  Presidents  of  the 
Circuit  Courts,  a  certificate  that  he  is  qualified  to  execute  the  duties  of  the  office  of 
Clerk  of  the  Circuit  Court :  provided,  that  nothing  herein  contained  shall  prevent 
the  Circuit  Courts,  in  each  county,  from  appointing  a  Clerk  pro  tern.,  until  a  quali- 


INDIANA.  421 

fied  Clerk  may  be  duly  elected:  and  provided,  also,  that  the  said  Clerks  respective- 
ly, when  qualified  and  elected,  shall  hold  their  offices  seven  years,  and  no  longer, 
unless  re-appointed. 

SEC.  IX.    All  Clerks  shall  be  removable  by  impeachment,  as  in  other  cases. 

SEC.  X.  When  any  vacancies  happen  in  any  of  the  courts,  occasioned  by  the 
death,  resignation,  or  removal  from  office  of  any  Judge  of  the  Supreme  or  Circuit 
Courts,  or  any  of  the  Clerks  of  the  said  courts,  a  successor  shall  be  appointed  in 
the  same  manner  as  herein  before  prescribed,  wb.3  shall  hold  his  office  for  the  pe- 
riod which  his  predecessor  had  to  serve,  and  no  longer,  unless  re-appointed. 

SEC.  XI.  Tho  style  of  the  process  shall  be  "  The  State  of  Indiana."  All 
prosecutions  shall  be  carried  on  in  the  name  and  by  the  authority  of  the  State  of  In- 
diana; and  all  indictments  shall  conclude  "against  the  peace  and  dignity  of  the 
same." 

SEC.  XII.  A  competent  number  of  Justices  of  the  Peace  shall  be  elected  by  the 
qualified  electors  in  each  township  in  the  several  counties,  and  shall  continue  in  of- 
fice five  years,  if  they  shall  so  long  behave  well ;  whose  powers  and  duties  shall 
from  time  to  time  be  regulated  and  defined  by  law. 

ARTICLE  VI. 

SECTION  I.  In  all  elections,  not  otherwise  provided  for  by  this  Constitution, 
every  white  male  citizen  of  the  United  States,  of  the  age  of  twenty-one  years  and 
upwards,  who  has  resided  in  tho  State  one  year  immediately  preceding  such  elec- 
tion, shall  be  entitled  to  vote  in  the  county  whore  he  resides,  except  such  as  shall 
be  enlisted  in  the  armies  of  the  United  States  or  their  allies. 

SRC.  II.  All  elections  shall  be  by  ballot:  provided  that  the  General  Assembly 
may,  (if  they  deem  it  more  expedient)  at  their  session  in  eighteen  hundred  and 
twenty-one,  change  the  mode,  so  as  to  vote  viva  voee;  after  which  time  it  shall  re- 
main unalterable. 

SEC.  III.  Electors  shall,  in  all  casas,  except  treason,  felony,  or  breach  of  the 
peace,  be  free  from  arrest  in  going  to,  during  their  attendance  at,  and  in  returning 
home  from  elections. 

SEC.  IV.  The  General  Assembly  shall  have  full  power  to  exclude  from  electing, 
or  being  elected,  any  person  convicted  of  any  infamous  crime. 

SKC.  V.  Nothing  ia  this  article  shall  be  so  construed  as  to  prevent  citizens  of  the 
United  States,  who  were  actual  residents  at  the  time  of  adopting  this  Constitution, 
and  who,  by  the  existing  laws  of  this  territory,  are  entitled  to  vote,  or  persons  who 
have  been  absent  from  home  on  a  visit,  or  necessary  business,  from  the  privilege  of 
electors. 

ARTICLE  VII. 

SECTION  I.  The  militia  of  the  State  of  Indiana  shall  consist  of  all  free,  able 
bodied  male  persons ;  negroes,  mulattoes,  and  Indians  excepted,  resident  in  the 


422  CONSTITUTION  OF 

-. 

said  State,  between  the  ages  of  eighteen  and  forty-five  years;  except  such  persons 
as  now  are,  or  hereafter  may  be,  exempted  by  the  laws  of  the  United  States,  or  of 
this  State  and  shall  be  armed,  equipped,  and  trained,  as  the  General  Assembly  may 
provide  by  law. 

SEC.  II.  No  person  or  persons  conscientiously  scrupulous  of  bearing  nrm^,  shall 
be  compelled  to  do  militia  duty :  provided,  such  person  or  persona  shall  pay  an 
equivalent  for  such  exemption ;  which  equivalent  shall  be  collected  annually  by  a 
civil  officer,  and  be  hereafter  fixed  by  law,  and  shall  be  equal,  as  near  a^  may  be,  to 
the  lowest  fines  assessed  on  those  privates  in  the  militia,  who  may  neglect  or  refuse 
to  perform  militia  duty. 

SEC.  III.   Captains  and  subalterns  shall   be  elected  by  those  persons  in  their 
respective  company  districts,  who  are  subject  to  perform  militia  duty ;  and  the 
captain  of  each  company  shall  appoint  the  non-commissioned  officers  to  said  com 
pany. 

SEC.  IV.  Majors  shall  be  elected  by  those  persons,  within  the  bounds  of  their 
respective  battalion  districts,  subject  to  perform  militia  duty ;  and  colonels  shall  be 
elected  by  those  persons,  within  the  bounds  of  their  respective  regimental  districts, 
subject  to  perform  militia  duty. 

SEC.  V.  Brigadier  generals  shall  be  elected  by  the  commissioned  officers  within 
the  bounds  of  their  respective  brigades;  and  major  generals  shall  be  elected  by  the 
commissioned  officers  within  the  bounds  of  their  respective  divisions. 

SEC.  VI.  Troops  and  squadrons  of  cavalry,  and  companies  of  artillery,  riflemen, 
grenadiers,  or  light  infantry,  may  be  formed  in  the  said  State,  in  such  manner  as 
shall  be  prescribed  by  law  :  provided,  however,  that  every  troop  or  squadron  of  cav- 
alry, company  of  artillery,  riflemen,  grenadiers,  or  light  infantry,  wl>ir,h  may  hereaf- 
ter be  formed  within  the  said  State,  shall  elect  their  own  officers. 

Sac.  VII.  The  Governor  shall  appoint  the  adjutant  general  and  quarter-master 
generals,  as  also  his  aids-de-camp. 

SEC.  VIII.  Major  generals  shall  appoint  their  aids-de-camp,  and  all  other  di- 
vision staff  officers :  brigadier  generals  shall  appoint  their  brigade  majors,  and  all 
other  brigade  staff  officers  ;  and  colonels  shall  appoint  their  regimental  staff  officers. 

SEC.  IX.  All  militia  officers  shall  be  commissioned  by  the  Governor,  and  shall 
hold  their  commissions  during  good  behavior,  or  until  they  shall  arrive  at  the  age  of 
sixty  years. 

SEC.  X.  The  General  Assembly  shall,  by  law,  fix  the  method  of  dividing  the 
militia  of  tho  said  State  into  divisions,  brigades,  regiments,  battalions,  and  com- 
panies, and  shall  also  fix  the  rank  of  all  staff  officers. 

ARTICLE  VIII. 

SECTION  I.  Every  twelfth  year  after  this  Constitution  shall  have  taken  effect,  at 
the  general  election  held  for  Governor,  there  shall  be  a  poll  opened,  in  which  the 
qualified  electors  of  the  State,  shall  express,  by  vote,  whether  they  are  in  favor  of 


INDIANA.  423 

calling  a  Convention  or  not ;  and  if  there  should  be  a  majority  of  all  the  votes  given 
at  such  election,  in  favor  of  a  Convention,  the  Governor  shall  inform  the  next  Ger- 
eral  Assembly  thereof,  whose  duty  it  shall  be,  to  provide  by  law  for  the  election  of 
the  members  to  the  convention,  the  number  thereof,  and  the  time  and  place  of  their 
meeting ;  which  law  shall  not  be  passed,  unless  agreed  to  by  a  majority  of  all  the 
members  elected  to  both  branches  of  the  General  Assembly;  and  which  Conven- 
tion, when  met,  shall  have  it  in  their  power  to  revise,  amend,  or  change  the  Consti- 
tution. But  as  the  holding  any  part  of  the  human  creation  in  slavery,  or  involun- 
tary servitude,  can  only  originate  in  usurpation  and  tyranny,  no  alteration  of  this 
Constitution  shall  ever  take  place  so  as  to  introduce  slavery  or  involuntary  servitude 
in  this  State ;  otherwise  than  for  the  punishment  of  crimes  whereof  the  party  shall 
have  been  duly  convicted. 

ARTICLE   IX. 

SECTION  I.  Knowledge  and  learning,  generally  diffused  through  a  community, 
being  essential  to  the  preservation  of  a  free  government,  and  spreading  the  oppor- 
tunities and  advantages  of  education  through  the  various  parts  of  the  country  being 
highly  conducive  to  this  end,  it  shall  be  the  duty  of  the  General  Assembly,  to  provide 
by  law  for  the  improvement  of  such  lands  as  are,  or  hereafter  may  be,  granted  by  the 
United  States  to  this  State,  for  the  use  of  schools,  and  to  apply  any  funds  which  may 
be  raised  from  such  lands,  or  from  any  other  quarter,  to  the  accomplishment  of  the 
grand  object  for  which  they  are  or  may  be  intended :  but  no  lands  granted  for  the 
use  of  schools  and  seminaries  of  learning  shall  be  sold,  by  the  authority  of  this  State, 
prior  to  the  year  eighteen  hundred  and  twenty ;  and  the  moneys  which  may  be  raised 
out  of  the  sale  of  any  such  lands,  or  otherwise  obtained  for  the  purposes  aforesaid 
shall  be  and  remain  a  fund  for  the  exclusive  purpose  of  promoting  the  interest  of 
literature  and  the  sciences,  and  for  the  support  of  seminaries  and  public  schools. 
The  General  Assembly  shall,  from  time  to  time,  pass  such  laws  as  shall  be  calculated 
to  encourage  intellectual,  scientifical,  and  agricultural  improvements,  by  allowing  re- 
wards and  immunities  for  the  promotion  and  improvement  of  arts,  sciences,  com- 
merce, manufactures,  and  natural  history ;  and  to  countenance  and  encourage  the 
principles  of  humanity,  honesty,  industry  and  morality. 

SEC.  II.  It  shall  be  the  duty  of  the  General  Assembly,  as  soon  as  circumstances 
will  permit,  to  provide  by  law  for  a  general  system  of  education,  ascending  in  a 
regular  gradation  from  township  schools  to  a  State  University,  wherein  tuition  shall 
be  gratis,  and  equally  open  to  all. 

SEC.  III.  And  for  the  promotion  of  such  salutary  end,  the  money  which  shall  be 
paid  as  an  equivalent  by  persons  exempt  from  militia  duty,  except  in  times  of  war, 
shall  be  exclusively,  and  in  equal  proportion,  applied  to  the  support  of  county  sem- 
inaries; aUo,  all  fines  assessed  for  any  breach  of  the  penal  laws,  shall  be  applied  to 
said  seminaries,  in  the  counties  wherein  they  shall  be  assessed. 

SEC.  IV.    It  shall  be  the  duty  of  the  General  Assembly,  as  soon  a»  circumstance* 


424  CONSTITUTION  OF 

will  permit,  to  form  a  penal  code,  founded  on  the  principles  of  reformation,  and  not 
of  vindictive  justice :  and,  also,  to  provide  one  or  more  farms,  to  be  an  asylum  for 
those  persons  who,  by  reason  of  age,  infirmity,  or  other  misfortunes,  may  have  a 
claim  upon  the  aid  and  beneficence  of  society,  on  such  principles  that  such  persons 
may  therein  find  employment  and  every  reasonable  comfort,  and  lose,  by  their  use- 
fulness, the  degrading  sense  of  dependence. 

SEC.  V.  The  General  Assembly,  at  the  time  they  lay  off  a  new  county,  shall 
cause  at  least  ten  per  cent,  to  be  reserved  out  of  the  proceeds  of  the  sale  of  town 
lots,  in  the  seat  of  justice  of  such  county,  for  the  use  of  a  public  library  for  such 
county ;  and,  at  the  same  session,  they  shall  incorporate  a  library  company,  under 
such  rules  and  regulations  as  will  best  secure  its  permanence,  and  extend  its 
benefits. 

ARTICLE  X. 

SECTION  I.  There  shall  not  be  established  or  incorporated,  in  this  State,  any 
bank  or  banking  company,  or  moneyed  institution,  for  the  purpose  of  issuing  bills  of 
credit,  or  bills  payable  to  order  or  bearer :  provided,  that  nothing  herein  contained 
shall  be  so  construed  as  to  prevent  the  General  Assembly  from  establishing  a  State 
bank  and  branches,  not  exceeding  one  branch  for  any  three  counties,  and  be  estab- 
lished at  such  place  within  such  counties,  as  the  directors  of  the  State  bank  may 
select :  provided,  there  be  subscribed  and  paid,  in  specie,  on  the  part  of  individuals, 
a  sum  equal  to  thirty  thousand  dollars :  provided,  also,  that  the  bank  at  Vincennes, 
and  the  farmers  and  mechanics  bank  of  Indiana,  at  Madison,  shall  be  considered  as 
incorporated  banks,  according  to  the  true  tenor  of  the  charters  granted  to  said  banks, 
by  the  Legislature  of  the  Indiana  territory :  provided,  that  nothing  herein  contained 
shall  be  so  construed  as  to  prevent  the  General  Assembly  from  adopting  either  of 
the  aforesaid  banks  as  the  State  bank ;  and  in  case  either  of  them  shall  be  adopted 
as  the  State  bank,  the  other  may  become  a  branch,  under  the  rules  and  regulations 
hereinbefore  prescribed. 

ARTICLE  XI. 

SECTION  I.  Every  person  who  shall  be  chosen  or  appointed  to  any  office  of  trust 
or  profit,  under  the  authority  of  this  State,  shall,  before  entering  on  the  duties  of 
said  office,  take  an  oath  or  affirmation,  before  any  person  lawfully  authorized  to  ad- 
minister oaths,  to  support  the  Constitution  of  the  United  States,  and  the  Constitu- 
tion of  this  State,  and  also  an  oath  of  office. 

SEC.  II.  Treason  against  this  State  shall  consist  only  in  levying  war  against  it,  in 
adhering  to  its  enemies,  or  giving  them  aid  and  comfort. 

SEC.  III.  No  person  shall  be  convicted  of  treason,  unless  on  the  testimony  of  two 
witnesses  to  the  same  overt  act,  or  his  own  confession  in  open  court. 

SEC.  IV.  The  manner  of  administering  an  oath  or  affimation  shall  be  such  as  is 
most  consistent  with  the  conscience  of  the  deponent,  and  shall  be  esteemed  th« 
most  solemn  appeal  to  God. 


INDIANA.  425 

SEC.  V.  Every  person  shall  be  disqualified  from  serving  as  Governor,  Liautenant 
Governor,  Senator,  or  Representative,  for  the  term  for  which  he  shall  have  been 
elected,  who  shall  have  been  convicted  of  having  given  or  offered  any  bribe,  treat, 
or  reward,  to  procure  his  election. 

SEC.  VI.  All  officers  shall  reside  within  the  State ;  and  all  district,  county,  or 
town  officers,  within  their  respective  districts,  counties,  or  towns,  (the  trustees  of 
the  town  of  Clarksville  exceptcd,)  and  shall  keep  their  respective  offices  at  such 
places  therein  as  may  be  directed  by  law  ;  and  all  militia  officers  shall  reside  within 
the  bounds  of  the  division,  brigade,  regiment,  battalion,  or  company,  to  which  they 
may  severally  belong. 

SEC.  VIE.  There  shall  be  neither  slavery  nor  involuntary  servitude  in  this  State, 
otherwise  than  for  the  punishment  of  crimes,  whereof  the  party  shall  have  been  duly 
convicted.  Nor  shall  any  indenture  of  any  negro  or  mulatto  hereafter  made  and 
executed  out  of  the  bounds  of  this  State,  be  of  any  validity  within  the  State. 

SEC.  VIII.  No  act  of  the  General  Assembly  shall  be  in  force,  until  it  shall  have 
been  published  in  print,  unless  in  cases  of  emergency. 

SEC.  IX.  All  commissions  shall  be  in  the  name,  and  by  the  authority,  of  the 
State  of  Indiana,  and  sealed  with  the  Stale  seal,  and  signed  by  the  Governor,  and 
attested  by  the  Secretary  of  State. 

SEC.  X.  There  shall  be  elected  in  each  county,  a  Recorder,  who  shall  hold  his 
office  during  the  term  of  seven  years,  if  he  shall  so  long  behave  well :  provided,  that 
nothing  herein  contained  shall  prevent  the  Clerks  of  the  Circuit  Courts  from  hold- 
ing the  office  of  Recorder. 

SEC.  XI.  Corydon,  in  Harrison  county,  shall  bo  the  seat  of  government  of  the 
State  of  Indiana,  until  the  year  eighteen  hundred  and  twenty-five,  and  until  removed 
by  law. 

Sic.  XII.  The  General  Assembly,  when  they  lay  off  any  new  county,  shall  not 
reduce  the  old  county  or  counties,  from  which  the  same  shall  be  taken,  to  a  less 
content  than  four  hundred  square  miles. 

SEC.  XIII.  No  person  shall  hold  more  than  one  lucrative  office  at  the  same 
time,  except  as  in  this  Constitution  is  expressly  permitted. 

SEC.  XIV.  No  person  shall  be  appointed  as  a  county  officer,  within  any  coun- 
ty, who  shall  not  have  been  a  citizen  and  an  inhabitant  therein,  one  year  next  pre- 
ceding his  appointment,  if  the  county  shall  have  been  so  long  erected ;  but  if  the 
county  shall  not  have  been  so  long  erected,  then  within  the  limits  of  the  county  or 
counties  out  of  which  it  shall  have  been  taken. 

SEC.  XV.  All  town  and  township  officers  shall  be  appointed  in  such  manner  as 
shall  be  directed  by  law. 

SEC.  XVI.  The  following  officers  of  government  shall  not  be  allowed  greater 
annual  salaries,  until  the  year  eighteen  hundred  and  nineteen,  than  as  follows :  The 
Governor,  one  thousand  dollars ;  the  Secretary  of  State,  four  hundred  dollars  ;  the 
Auditor  of  public  accounts,  four  hundred  dollars;  the  Treasurer,  four  hundred  dol- 

19* 


426  CONSTITUTION  OF 

lara  :  the  Judges  of  the  Supreme  Court,  eight  hundred  dollars  each ;  the  Presidents 
of  the  Circuit  court?,  eight  hundred  dollars  each  ;  and  the  members  of  the  General 
Assembly,  not  exceeding  two  dollars  per  day  each,  during  their  attendance  on  the 
same ;  and  two  dollars  for  every  twenty-five  miles  they  shall  severally  travel,  on  tho 
most  usual  route  in  going  to,  and  returning  from,  the  General  Assembly ;  after 
which  time,  their  pay  shall  be  regulated  by  law.  But  no  law,  passed  to  increase 
the  pay  of  members  of  the  General  Assembly,  shall  take  effect,  until  after  the  close 
of  the  session,  at  which  such  law  shall  have  been  passed. 

SEC.  XVII.  In  order  that  the  boundaries  of  the  State  of  Indiana  may  moro 
certainly  be  known  and  established,  it  is  hereby  ordained  and  declared,  that  the 
following  shall  be,  and  forever  remain,  the  boundaries  of  the  said  State,  to  wit : 
Bounded  on  the  east  by  the  meridian  line  which  foi'ma  the  western  boundary  of  tho 
State  of  Ohio;  on  the  south,  by  the  Ohio  river,  frrni  the  mouth  of  the  great  Miami 
river  to  the  mouth  of  the  river  Wabash  ;  on  the  west,  by  a  line  drawn  along  the 
middle  of  the  Wabash  river,  from  its  mouth  to  a  point  where  a  due  north  line, 
drawn  from  the  town  of  Viticennes,  would  last  touch  the  north-western  shore  of  the 
•aid  Wabash  river ;  and  from  thence,  by  a  due  north  line  until  the  same  shall  inter- 
sect an  east  and  west  line  drawn  through  a  point  ten  miles  north  of  the  southern 
extreme  of  lake  Michigan ;  on  the  north,  by  the  said  east  and  west  line,  until  the 
same  shall  intersect  the  first  mentioned  meridian  line,  which  forms  the  western 
boundary  of  the  State  of  Ohio. 

ARTICLE  XII. 

SECTION  I.  That  no  evils  or  inconveniences  may  arise  from  the  change  of  a 
territorial  government  to  a  permanent  State  government,  it  is  declared  by  this  Con- 
stitution, that  all  rights,  suits,  actions,  prosecutions,  recognizances,  contracts  and 
claims,  both  as  it  respects  individuals  and  bodies  corporate,  shall  continue  a»  if  n" 
change  had  taken  [place]  in  this  government. 

SEC.  II.  All  fines,  penalties,  and  forfeitures,  due  and  owing  to  the  territory  of 
Indiana,  or  any  county  therein,  shall  inure  to  the  use  of  the  State  or  county.  All 
bonds  executed  to  the  Governor,  or  any  other  officer,  in  his  official  capacity,  in  the 
territory,  shall  pass  over  to  the  Governor,  or  other  officers  of  the  State  or  county. 
and  their  successors  in  office,  for  the  use  of  the  State  or  county,  or  by  him  or  them 
to  be  respectively  assigned  over  to  the  use  of  those  concerned,  as  the  case  may  br. 

SEC.  III.  The  G  >vernor,  Secretary,  and  Judges,  and  all  other  officers,  both  civil 
and  military,  under  the  territorial  government,  shall  continue  in  the  exercise  of  tho 
duties  of  their  respective  departments,  until  the  said  officers  are  superseded  under 
the  authority  of  this  Constitution. 

SEC.  IV.  All  laws  and  parts  of  laws  now  in  force  in  this  territory,  not  incon- 
sistent with  this  Constitution,  shall  continue  and  remain  in  full  force  and  effect,  un- 
til they  expire  or  be  repealed. 

SEC.  V.  The  Governor  shall  use  his  private  seal,  until  a  State  seal  be  procured. 


INDIANA.  427 

SEC.  VI.  The  Governor,  Secretary  of  State,  Auditor  of  Public  Accounts,  and 
Treasurer,  shall  severally  reside,  and  keep  all  the  public  records,  books  and  papers, 
in  any  manner  relating  to  their  respective  offices,  at  the  seat  of  government :  pro- 
vided, notwithstanding,  that  nothing  herein  contained  shall  be  so  construed  as  to 
affect  the  residence  of  the  Governor  for  the  space  of  six  months,  and  until  buildings 
suitable  for  his  accommodation  shall  be  procured,  at  the  expense  of  the  State. 

SKC.  VII.  All  suits,  pleas,  plaints,  and  other  proceedings,  now  depending  in 
any  Court  of  Record,  or  Justice's  Courts,  shall  be  prosecuted  to  final  judgment  and 
execution ;  and  all  appeals,  writs  of  error,  certiorari,  injunction,  or  other  proceed- 
ings whatsoever,  shall  progress,  and  bo  carried  on,  in  the  respective  court  or  courts, 
in  the  same  manner  as  is  now  provided  by  law,  and  all  proceedings  had  therein,  in 
as  full  and  complete  a  manner  as  if  this  Constitution  were  not  adopted.  And  ap- 
peals and  writs  of  error  may  be  taken  from  the  Circuit  Court  and  General  Court, 
now  established  in  the  Indiana  territory,  to  the  Supreme  Court,  in  such  manner  as 
shall  be  provided  for  by  law. 

SEC.  VIII.  The  President  of  this  Convention  shall  issue  writs  of  election,  directed 
to  the  several  Sheriffs  of  the  several  counties,  requiring  them  to  cause  an  election  to 
be  held  for  a  Governor,  Lieutenant  Governor,  a  Representative  to  the  Congress  of 
the  United  States,  members  of  the  General  Assembly,  Sheriffs  and  Coroners,  at  the 
respective  election  districts  in  each  county,  on  the  first  Monday  in  August  next; 
which  election  shall  be  conducted  in  the  [manner]  prescritad  by  the  existing  elec- 
tion laws  of  the  Indiana  territory ;  and  the  said  Governor,  Lieutenant  Governor, 
members  of  the  General  Assembly,  Sheriffs  and  Coroners,  then  duly  elected,  shall 
continue  to  exercise  the  duties  of  their  respective  offices  for  the  time  prescribed  by 
this  Constitution,  and  until  their  successor  or  successors  are  qualified,  and  no  longer. 

SEC.  IX.  Until  the  first  enumeration  shall  be  made,  as  directed  by  this  Consti- 
tution, the  county  of  Wayne  shall  be  entitled  to  one  Senator  and  three  Representa- 
tives; the  county  of  Franklin,  one  Senator  and  three  Representatives  ;  the  county 
of  Dearborn,  one  Senator  and  two  Representatives  ;  the  county  of  Switzerland,  one 
Representative ;  and  the  counties  of  Jefferson  and  Switzerland,  one  Senator,  and 
the  county  of  Jefferson,  two  Representatives;  the  county  of  Clark,  one  Senator 
and  three  Representatives ;  the  county  of  Harrison,  one  Senator  and  three  Repre- 
sentatives;  the  rounties  of  Washington,  Orange,  and  Jackson,  one  Senator;  and 
the  county  of  Washington,  two  Representatives ;  the  counties  of  Orange  and  Jack- 
son, one  Representative  ea^h ;  the  county  of  Knox  one  Senator  and  three  Repre- 
sentatives ;  the  county  of  Gibson,  one  Senator  and  two  Representatives  ;  the  coun- 
ties of  Posey,  Wai-rick,  and  Perry,  one  Senator,  and  each  of  the  aforesaid  counties 
of  Posey,  Warrick,  and  Perry,  one  Representative. 

SEC.  X.  All  books,  records,  documents,  warrants  and  papers,  appertaining  and 
belonging  to  the  office  of  the  territorial  Treasurer  of  the  Indiana  territory,  and  all 
moneys  therein,  and  all  papers  and  documents  in  the  office  of  the  Secretary  of  said 
temtory,  shall  be  disposed  of  as  the  General  Assembly  of  this  State  may  direct. 


428  CONSTITUTION  OF  INDIANA. 

SEC.  XI.  All  suits,  actions,  pleas,  plaints,  prosecutions,  and  causes  whatsoever ; 
and  all  records,  books,  papers  and  documents  now  in  the  General  Court,  may  be 
transferred  to  the  Supreme  Court,  established  by  this  Constitution ;  and  all  causes, 
suits,  actions,  pleas,  plaints,  and  prosecutions  whatsoever,  now  existing  or  pending 
in  the  Circuit  Courts  of  this  territory,  or  which  may  bo  therein  at  the  change  of 
government ;  and  all  records,  books,  papers,  and  documents,  relating  to  the  said 
suits,  or  filed  in  the  said  courts,  may  be  transferred  over  to  the  Circuit  Courts  es- 
tablished by  this  Constitution,  under  such  rules  and  regulations  aa  the  General  As- 
sembly may  direct. 

Done  in  Convention  at  Corydon,  on  the  twenty-ninth  day  of  June,  in  the  year  of 
our  Lord  eighteen  hundred  and  sixteen,  and  of  the  Independence  of  the  United 
States,  the  fortieth. 


STATE  OF  ILLINOIS.  429 


CONSTITUTION 


THE  STATE  OF  ILLINOIS. 


THE  PEOPLE  of  the  Illinois  Territory,  having  the  right  of  admission  into  the  Gen- 
eral Government  as  a  member  of  the  Union,  consistent  with  the  Constitution  of  the 
United  States,  the  ordinance  of  Congress  of  1787,  and  the  law  of  Congress,  approv- 
ed April  18,  1818,  entitled  "  an  Act  to  enable  the  people  of  the  Illinois  Territory 
to  form  a  Constitution  and  State  Government,  and  for  the  admission  of  such  State 
into  the  Union  on  an  equal  footing  with  the  original  States,  and  for  other  purposes;" 
in  order  to  establish  justice,  promote  the  welfare,  and  secure  the  blessings  of  liberty 
to  themselves  and  their  posterity,  do,  by  their  Representatives  in  Convention,  ordain 
and  establish  the  following  Constitution  or  form  of  government;  and  do  mutually 
agree  with  each  other  to  form  themselves  into  a  free  and  independent  State,  by  the 
name  of  the  State  of  Illinois.  And  they  do  hereby  ratify  the  boundaries  assigned 
to  such  State  by  the  act  of  Congress  aforesaid,  which  are  as  follows,  to  wit :  "  Be- 
ginning at  the  mouth  of  the  Wabash  river,  thence  up  the  same,  and  with  the  line  of 
Indiana  to  the  north-west  corner  of  said  State ;  thence  east  with  the  line  of  the  same 
State  to  the  middle  of  Lake  Michigan ;  thence  north  along  the  middle  of  said  lake, 
to  the  north  latitude  forty-two  degrees  and  thirty  minutes  ;  thence  west  to  the  mid- 
dle of  the  Mississippi  river ;  and  thence  down  along  the  middle  of  that  river  to  its 
confluence  with  the  Ohio  river ;  and  thence  up  the  latter  river  along  its  north- 
western shore  to  the  beginning. 

ARTICLE  I. 

SECTIOH  I.  The  powers  of  the  government  of  the  State  of  Illinois,  shall  be  di- 
vided into  three  distinct  departments,  and  each  of  them  be  confided  to  a  separate 
body  of  magistracy,  to  wit :  Those  which  are  legislative,  to  one  ;  those  which  are 
executive,  to  another;  and  those  which  are  judiciary,  to  another. 

SEC.  II.  No  person  or  collection  of  persons,  being  one  of  those  departments, 
shall  exercise  any  power  properly  belonging  to  either  of  the  others,  except  as  here- 
inafter expressly  directed  or  permitted. 


430  CONSTITUTION  OF 


ARTICLE  II. 

SECTION  I.  The  Legislative  authority  of  this  State  shall  be  vested  in  a  General 
Assembly,  which  shall  consist  in  a  Senate  and  House  of  Representatives,  both  to  bo 
elected  by  the  people. 

SEC.  II.  The  first  election  for  Senators  and  Representatives  shall  commence  on 
the  third  Thursday  of  September  next,  and  continue  for  that  and  the  two  succeed- 
ing days ;  and  the  next  election  shall  be  held  on  the  first  Monday  in  August,  one 
thousand  eight  hundred  and  twenty;  and  forever  after,  elections  shall  be  held  once 
in  two  years,  on  the  first  Monday  of  August,  in  each  and  every  county,  at  such 
places  therein  as  may  be  provided  by  law. 

SEC.  III.  No  person  shall  be  a  Representative  who  shall  not  have  attained  the 
age  of  twenty-one  years,  who  shall  not  be  a  citizen  of  the  United  States,  and  an  in- 
habitant of  this  State:  who  shall  not  have  resided  within  the  limits  of  the  county 
or  district  in  which  he  shall  be  chosen,  twelve  months  next  preceding  his  election, 
if  such  county  or  district  shall  have  been  so  long  erected ;  but  if  not,  then  within 
the  limits  of  the  county  or  counties,  district  or  districts  out  of  which  the  same  shall 
have  been  taken,  unless  he  shall  have  been  absent  on  the  public  business  c\c  the 
United  States  or  of  this  State ;  and  who  moreover  shall  not  have  paid  a  State  or 
county  tax. 

SEC.  IV.  The  Senators  at  their  first  session  herein  provided  for,  shall  be  divided 
by  lot  from  their  respective  counties  or  districts,  as  near  as  can  be,  into  two  classes. 
The  seals  of  the  Senators  of  the  first  class  shall  be  vacated  at  the  expiration  of  the 
second  year ;  and  those  of  the  second  class  at  the  expiration  of  the  fourth  year,  so 
that  one-half  thereof,  as  near  as  possible,  may  be  biennially  chosen  forever  thereafter. 

SEC.  V.  The  number  of  Senators  and  Representatives  shall,  at  the  first  session 
of  the  General  Assembly  hold  en  after  the  returns  herein  provided  for  are  made,  be 
fixed  by  the  General  Assembly,  and  apportioned  among  the  several  counties  or  dis- 
tricts to  be  established  by  law,  according  to  the  number  of  white  inhabitants.  The 
number  of  Representatives  shall  not  be  less  than  twenty-seven,  nor  more  than  thirty- 
six,  until  the  number  of  inhabitants  within  this  State  shall  amount  to  one  hundred 
thousand ;  and  the  number  of  Senators  shall  never  be  less  than  one-third,  nor  more 
than  one-half,  of  the  number  of  Representatives. 

SEC.  VI.  No  person  shall  be  a  Senator  who  has  not  arrived  at  the  age  of  twenty- 
five  years,  who  shall  not  be  a  citizen  of  the  United  States,  and  who  shall  not  have 
resided  one  year  in  the  county  or  district  in  which  he  shall  be  chosen  immediately 
preceding  his  election,  if  such  county  or  district  shall  have  been  so  long  erected ; 
but  if  not,  then  within  the  limits  of  the  county  or  counties,  district  or  district?,  out 
of  which  the  same  shall  have  been  taken  ;  unless  he  shall  have  been  absent  on  the 
public  business  of  the  United  States  or  of  this  State,  and  shall  not  moreover  have 
paid  a  State  or  county  *ax. 

SEC.  VII.  The  Swnate  and  House  of  Representatives,  when  assembled,  shall 
each  choose  a  Speaker  and  other  officers:  (the  Speaker  of  the  Senate  excepted:) 


ILLINOIS.  431 

each  House  shall  judge  of  the  qualifications  and  elections  of  its  members,  and  sit 
upon  its  own  adjournments.  Two-thirds  of  euch  House  shall  constitute  a  quorum, 
but  a  smaller  number  may  adjourn  from  day  to  day,  and  compel  the  attendance  of 
absent  members. 

SEC.  VIII.  Each  House  shall  keep  a  journal  of  its  proceedings,  and  publish 
them :  the  yeas  and  nays  of  the  members,  on  any  question,  shall,  at  the  desire  of 
any  two  of  them,  be  entered  on  the  journals. 

SEC.  IX.  Any  two  members  of  either  House,  shall  huve  liberty  to  dissent  and 
protest  against  any  ar.t  or  resolution  which  they  may  think  injurious  to  the  public, 
or  to  any  individual,  and  have  the  reasons  of  their  dissent  entered  on  the  journals. 

SEC.  X.  Each  House  may  determine  the  rules  of  its  proceedings;  punish  ita 
members  for  disorderly  behavior;  and  with  the  concurrence  of  two-thirds,  expel  a 
member,  but  not  a  second  time  for  the  same  cause. 

SEC.  XL  When  vacancies  happen  in  either  House,  the  Governor,  or  the  person 
exercising  the  powers  of  Governor,  shall  issue  writs  of  election  to  fill  such  vacancies. 

SEC.  Xll.  Senators  and  Representatives  shall,  in  all  cases,  except  treason,  felony, 
or  breach  of  the  peace,  be  privileged  from  arrest,  during  the  session  of  the  General 
Assembly,  and  in  going  to,  and  returning  from  the  same ;  and  for  any  speech  or  de- 
bate in  either  House,  they  shall  not  be  questioned  in  any  other  place. 

SEC.  XIII.  Each  house  may  punish,  by  imprisonment  during  its  session,  any 
person  not  a  member,  who  shall  be  guilty  of  disrespect  to  the  House,  by  any  disor- 
derly or  contemptuous  behavior  in  their  presence;  provided  such  imprisonment 
(shall  not  at.  any  one  time  exceed  twenty-four  hours. 

SEC.  XIV.  The  doors  of  each  House,  and  of  committees  of  the  whole,  shall  be 
kept  open,  except  in  such  cases  a.-*,  in  the  opinion  of  the  House,  require  secrecy. 
Neither  House  shall,  without  the  consent  of  the  other,  adjourn  for  more  than  two 
days,  nor  to  any  other  place  than  that  in  which  the  two  Houses  shall  be  sitting. 

SEC.  XV.  Bills  may  originate  in  either  House,  but  may  be  altered,  amended,  or 
rejected  by  the  other. 

SEC.  XVI.  Every  bill  shall  be  read  on  three  different  days  in  each  House,  unless 
in  case  of  urgency,  three-fourths  of  the  House  where  such  bill  is  so  depending,  shall 
deem  it  expedient  to  dispense  with  this  rule;  and  every  bill  having  passed  both 
Houses,  shall  be  signed  by  the  Speakers  of  the  respective  Houses. 

SEC.  XVIL  The  style  of  the  laws  of  this  State  shall  be :  "  Be  it  enacted  by  the 
People  of  the  State  of  Illinois,  represented  in  the  General  Assembly." 

SEC.  XVIII.  The  General  Assembly  of  this  State  shall  not  allow  the  following 
officers  of  government  greater  or  smaller  annual  salaries  than  as  follows,  until  the 
year  one  thousand  eight  hundred  and  twenty-four:  the  Governor,  one  thousand  dol- 
lars; and  the  Secretary  of  State,  six  hundred  dollars. 

SEC.  XIX.  No  Senator  or  Representative  shall,  during  the  time  for  which  he 
shall  have  been  elected,  be  appointed  to  any  civil  office  under  this  State,  which  shall 
have  been  created,  or  the  emoluments  of  which  shall  have  been  increased  during 
each  time. 


432  CONSTITUTION  OF 

SEC.  XX.  No  money  shall  bo  drawn  from  the  Treasury  but  in  consequence  «f 
appropriations  made  by  law. 

SEC.  XXI.  An  accurate  statement  of  the  receipts  and  expenditures  of  the  pub- 
lic money,  shall  be  attached  to,  and  published  with,  the  laws,  at  the  rising  of  each 
session  of  the  General  Assembly. 

SEC.  XXII.  The  House  of  Representatives  shall  have  the  sole  power  of  im- 
peaching, but  a  majority  of  all  the  members  present  must  concur  in  an  impeach- 
ment ;  all  impeachments  shall  be  tried  by  the  Senate ;  and  when  sitting  for  that 
purpose,  the  Senators  shall  be  upon  oath  or  affirmation,  to  do  justice  according  to 
law  and  evidence.  No  person  shall  be  convicted  without  the  concurrence  of  two- 
thirds  of  all  the  Senators  present. 

SEC.  XXIII.  The  Governor,  and  all  other  civil  officers  under  this  State,  shall 
be  liable  to  impeachment  for  any  misdemeanor  in  office ;  but  judgment  in  such 
cases  shall  not  extend  further  than  to  removal  from  office,  and  disqualification  to 
hold  any  office  of  honor,  profit  or  trust  under  this  State.  The  party,  whether  con- 
victed or  acquitted,  shall  nevertheless  be  liable  to  indictment,  trial,  judgment  and 
punishment  according  to  law. 

SEC.  XXIV.  The  first  session  of  the  General  Assembly  shall  commence  on  the 
first  Monday  of  October  next,  and  forever  after  the  General  Assembly  shall  meet 
on  the  first  Monday  in  December  next  ensuing  the  election  of  the  members  thereof, 
and  at  no  other  period,  unless  as  provided  by  this  Constitution. 

SEC.  XXV.  No  Judge  of  any  court  of  law  or  equity,  Secretary  of  State,  Attor- 
ney General,  Attorney  for  the  State,  Register,  Clerk  of  any  Court  of  Record,  Sheriff 
or  Collector,  member  of  either  House  of  Congress,  or  person  holding  any  lucrative 
office  under  the  United  States  or  this  State,  (provided  that  appointments  in  the 
militia,  Postmasters,  or  Justices  of  the  Peace  shall  not  be  considered  lucrative 
ffices,)  shall  have  a  seat  in  the  General  Assembly  :  nor  shall  any  person  holding  any 
office  of  honor  or  profit  under  the  government  of  the  United  States,  hold  any  office 
of  honor  or  profit  under  the  authority  of  this  State. 

SEC.  XXVI.  Every  person  who  shall  be  chosen  or  appointed  to  any  office  of 
trust  or  profit  shall,  before  entering  upon  the  duties  thereof,  take  an  oath  to  sup- 
port the  Constitution  of  the  United  States  and  of  this  State,  and  also  an  oath  of 
office. 

SEC.  XXVII.  In  all  elections,  all  white  male  Inhabitants  above  the  age  of  twen- 
ty-one years,  having  resided  in  the  State  six  months  next  preceding  the  election, 
shall  enjoy  the  right  of  an  elector ;  but  no  person  shall  be  entitled  to  vote,  except 
in  the  county  or  district  in  which  he  shall  actually  reside  at  the  time  of  the  election. 

SEC.  XXVIII.  All  votes  shall  be  given  viva  voce,  until  altered  by  the  General 
Assembly. 

SEC.  XXIX.  Electors  shall,  in  all  cases,  except  treason,  felony,  or  breach  of 
the  peace,  be  privileged  from  arrest  during  their  attendance  at  elections,  and  in 
going  to  and  returning  from  the  same. 

SEC.  XXX.    The  General  Assembly  shall  have  full  power  to  exclude  from  the 


ILLINOIS.  433 

privilege  of  electing  or  being  elected,  any  person  convicted  of  bribery,  perjury,  or 
any  other  infamous  crime. 

SEC.  XXXI.  In  the  year  one  thousand  eight  hundred  and  twenty,  and  every 
fifth  year  thereafter,  an  enumeration  of  ail  the  white  inhabitants  of  the  State  shall 
be  made  in  such  manner  as  shall  be  directed  by  law. 

SEC.  XXXII.  All  bills  for  raising  a  revenue  shall  originate  in  the  House  of 
Representatives,  subject,  however,  to  amendment  or  rejection,  as  in  other  cases. 

ARTICLE  III. 

SECTION  I.    The  executive  power  of  the  State  shall  be  vested  in  a  Governor. 

SEC.  II.  The  first  election  of  Governor  shall  commence  on  the  third  Thursday 
of  September  next,  and  continue  for  that  and  the  two  succeeding  days ;  and  the  next 
election  shall  be  held  on  the  first  Monday  of  August,  in  the  year  of  our  Lord  one 
thousand  eight  hundred  and  twenty-two.  And  forever  after,  elections  for  Gov- 
ernor shall  be  held  once  in  four  years,  on  the  first  Monday  of  August.  The  Gov 
ernor  shall  be  chosen  by  the  electors  of  the  members  of  the  General  Assembly,  at 
the  same  places  and  in  the  same  manner  that  they  shall  respectively  vote  for  mem- 
bers thereof.  The  returns  for  every  election  for  Governor  shall  be  sealed  up  and 
transmitted  to  the  seat  of  government  by  the  returning  officers,  directed  to  the 
Sj>t",iker  of  the  House  of  Representatives,  who  shall  open  and  publish  them  in  the 
presence  of  a  majority  of  the  members  of  each  House  of  the  General  Assembly. 
The  person  having  the  highest  number  of  votes  shall  be  Governor ;  but  if  two  or 
more  be  equal  and  highest  in  votes,  then  one  of  them  shall  be  chosen  Governor  by 
joint  ballot  of  both  Houses  of  the  General  Assembly.  Contested  elections  shall  be 
determined  by  both  Houses  of  thc]General  Assembly,  in  such  manner  tts  shall  be 
]>ri -scribed  by  law. 

SEC.  III.  The  first  Governor  shall  hold  his  office  until  the  first  Monday  of  Decem- 
ber, in  the  year  of  our  Lord  one  thousand  eight  hundred  and  twenty-two,  and  until  an» 
other  Governor  shall  be  elected  and  qualified  to  office :  and  forever  after,  the  Governor 
shall  hold  his  office  for  the  term  of  four  years,  and  until  another  Governor  shall  be 
elected  and  qualified ;  but  he  shall  not  be  eligible  for  more  than  four  years  in  any  term 
of  eight  years.  He  shall  be  at  least  thirty  y«ars  of  age,  and  have  been  a  citizen  of 
the  United  States  thirty  years  ;  two  years  of  which  next  preceding  his  election  he 
shall  have  resided  within  the  limits  of  this  State. 

SKC.  IV.  He  shall,  from  time  to  time,  give  the  General  Assembly  information 
of  the  state  of  the  government,  and  recommend  to  their  consideration  such  measures 
as  he  shall  deem  expedient. 

SEC.  V.  He  shall  have  power  to  grant  reprieves  and  pardons  after  conviction, 
except  in  casea  of  impeachment. 

SEC.  VI.  The  Governor  shall,  at  stated  times,  receive  a  salary  for  his  services, 
which  shall  neither  be  increased  nor  diminished  during  the  term  for  which  he  shall 
have  been  elected. 

SJEC.  VII.    He  may  require  information  in  writing  from  the  officer*  in  the  ex* 

20 


434  CONSTITUTION  OF 

ecutive  department,  upon  any  subject  relating  to  the  duties  of  their  rcapectiye  of- 
fices, and  shall  take  care  that  the  laws  be  faithfully  executed. 

SEC.  VIII.  When  any  officer,  the  right  of  whose  appointment  is,  by  this  Con- 
stitution, vested  in  the  General  Assembly,  or  in  the  Governor  and  Senate,  shall, 
during  the  recess,  die,  or  his  office  by  any  means  become  vacant,  the  Governor  shall 
have  power  to  fill  such  vacancy,  by  granting  a  commission,  which  shall  expire  at 
the  end  of  the  next  session  of  the  General  Assembly. 

SEC.  IX.  He  may,  on  extraordinary  occasions,  convene  the  General  Assembly 
by  proclamation,  and  shall  state  to  them  when  assembled,  the  purpose  for  which 
they  shall  have  been  convened. 

SEC.  X.  He  shall  be  Commander-in-Chief  of  the  army  and  navy  of  this  State, 
and  of  the  militia,  except  when  they  shall  be  called  into  the  service  of  the  United 
States. 

SEC.  XI.  There  shall  be  elected  in  each  and  every  county  in  the  said  State,  by 
those  who  are  qualified  to  vote  for  members  of  the  General  Assembly,  and  at  the 
same  times  and  places  where  the  election  for  such  members  shall  be  held,  one 
Sheriff  and  one  Coroner,  whose  election  shall  be  subject  to  such  rules  and  regula- 
tions as  shall  be  prescribed  by  law.  The  said  Sheriffs  and  Coroners  respectively, 
when  elected,  shall  continue  in  office  two  years,  be  subject  to  removal  and  disquali- 
fication, and  such  other  rules  and  regulations  as  may  be  from  time  to  time  pre- 
scribed by  law. 

SKC.  XII.  In  case  of  disagreement  between  the  two  Houses  with  respect  to  the 
time  of  adjournment,  the  Governor  shall  have  power  to  adjourn  the  General  As- 
sembly, to  such  time  as  he  thinks  proper,  provided  it  be  not  a  period  beyond  the 
next  constitutional  meeting  of  the  same. 

SEC.  XIII.  A  Lieutenant  Governor  shall  be  chosen  at  every  election  for  Gov- 
ernor, in  the  same  manner,  continue  in  office  for  the  same  time,  and  possess  the 
same  qualifications.  In  voting  for  Governor  and  Lieutenant  Governor,  the  elector* 
shall  distinguish  whom  they  vote  for  as  Governor,  and  whom  as  Lieutenant  Gov- 
ernor. 

SEC.  XIV.  He  shall  by  virtue  of  his  office  be  Speaker  of  the  Senate,  have  a 
right,  when  in  committee  of  the  whole,  to  debate  and  vote  on  all  subjects ;  and 
whenever  the  Senate  are  equally  divided,  to  give  the  casting  vote. 

SEC.  XV.  Whenever  the  government  shall  be  administered  by  the  Lieutenant 
Governor,  or  he  shall  be  unable  to  attend  as  Speaker  of  the  Senate,  the  Senators 
shall  elect  one  of  their  own  members  as  Speaker  for  that  occasion ;  and  if,  dunng 
the  vacancy  of  the  office  of  Governor,  the  Lieutenant  Governor  shall  be  impeached, 
removed  from  office,  refuse  to  qualify,  or  resign,  or  die,  or  be  absent  from  the  State, 
the  Speaker  of  the  Senate  shall  in  like  manner  administer  the  government. 

SEC.  XVI.  The  Lieutenant  Governor,  while  he  acts  as  Speaker  of  the  Senate, 
shall  receive  for  his  services  the  same  compensation,  which  shall,  for  the  same  pe- 
riod, be  allowed  to  the  Speaker  of  the  House  of  Representatives  and  no  more ; 
and  during  the  time  he  administer*  the  government  as  Governor,  he  shall  receive 


ILLINOIS.  485 

the  same  compensation  which  the  Governor  would  have  received  had  he  been  em« 
ployed  in  the  duties  of  his  office. 

SEC.  XVII.  If  the  Lieutenant  Governor  shall  be  called  upon  to  administer  the 
government,  and  shall,  while  in  such  administration,  resign,  die,  or  be  absent  from 
the  State  during  the  recess  of  the  General  Assembly,  it  shall  be  the  duty  of  the 
Secretary  for  the  time  being,  to  convene  the  Senate  for  the  purpose  of  choosing  a 
Speaker. 

SEC.  XVIII.  In  case  of  an  impeachment  of  the  Governor,  his  removal  from 
office,  death,  refusal  to  qualify,  resignation  or  absence  from  the  State,  the  Lieuten- 
ant Governor  shall  exercise  all  the  power  and  authority  appertaining  to  the  office 
of  Governor,  until  the  time  pointed  out  by  this  Constitution  for  the  election  of 
Governor  shall  arrive,  unless  the  General  Assembly  shall  provide  by  law  for  the 
election  of  a  Governor  to  fill  such  vacancy. 

Sec.  XIX.  The  Governor,  for  the  time  being,  and  the  Judges  of  the  Supreme 
Court,  or  a  major  part  of  them,  together  with  the  Governor,  shall  be  and  are  here- 
by constituted  a  council  to  revise  all  bills  about  to  be  passed  into  laws  by  the  Gen- 
eral Assembly;  and  for  that  purpose  shall  assemble  themselves  from  time  to  time, 
when  the  General  Assembly  shall  be  convened  ;  for  which  nevertheless  they  shall 
not  receive  any  salary  or  consideration  under  any  pretence  whatever ;  and  all  bills 
which  have  passed  the  Senate  and  House  of  Representatives  shall,  before  they 
become  laws,  be  presented  to  the  said  council  for  their  revisal  and  consideration  ; 
but  if,  upon  such  revisal  and  consideration,  it  should  appear  improper  to  the  said 
council,  or  a  majority  of  them,  that  the  bill  should  become  a  law  of  this  State,  they 
shall  return  the  same,  together  with  their  objections  thereto  in  writing,  to  the  Sen- 
ate or  House  of  Representatives  (in  whichsoever  the  same  shall  have  originated) 
who  shall  enter  the  objections  set  down  by  the  council,  at  large,  in  their  minutes, 
and  proceed  to  reconsider  the  said  bill.  But  if,  after  such  reconsideration,  the 
said  Senate  or  House  of  Representatives  shall,  notwithstanding  the  said  objections, 
agree  to  pass  the  same  by  a  majority  of  the  whole  number  of  members  elected,  it 
shall,  together  with  the  said  objections,  be  sent  to  the  other  branch  of  the  General 
Assembly,  where  it  shall  also  be  reconsidered ;  and  if  approved  by  a  majority  of 
all  the  members  elected,  it  shall  become  a  law.  If  any  bill  shall  not  be  returned 
within  ten  days  after  it  shall  have  been  presented,  the  same  shall  be  a  law,  unless 
the  General  Assembly  shall,  by  their  adjournment,  render  a  return  of  the  said  bill 
in  ten  days  impracticable ;  in  which  case,  the  said  bill  shall  be  returned  on  the  first 
day  of  the  meeting  of  the  General  Assembly,  after  the  expiration  of  the  said  ten 
days,  or  be  a  law. 

S£C.  XX.  The  Governor  shall  nominate,  and  by  and  with  the  advice  and  con- 
sent of  the  Senate,  appoint  a  Secretary  of  State,  who  shall  keep  a  fair  register  of 
the  official  acts  of  the  Governor,  and  when  required,  shall  lay  the  same  and  all  pa- 
pers, minutes  and  vouchers  relative  thereto,  before  either  branch  of  the  General 
Assembly,  and  shall  perform  such  other  duties  as  shall  be  assigned  him  by  law. 

8sc.  XXI.    The  State  Treasurer  and  Public  Printer,  or  Printers  for  the  State, 


436  CONSTITUTION  OP 

shall  be  appointed  biennially  by  the  joint  vote  of  both  branches  of  the  General  As- 
sembly :  provided,  that  during  the  recess  of  the  same,  the  Governor  shall  have 
power  to  fill  such  vacancies  as  may  happen  in  either  of  said  offices. 

SEC.  XXII.  The  Governor  shall  nominate,  and  by  and  with  the  advice  and  con- 
sent of  the  Senate,  appoint  all  officers  whose  offices  are  established  by  this  Consti- 
tution, or  shall  be  established  by  law,  and  whose  appointments  are  not  herein  other 
wise  provided  for :  provided,  however,  that  Inspectors,  Collectors,  and  their  depu- 
ties, Surveyors  of  the  Highways,  Constables,  Jailors,  and  such  inferior  officers 
whose  jurisdiction  may  be  confined  within  the  limits  of  the  county,  shall  be  appoint- 
ed in  such  manner  as  the  General  Assembly  shall  prescribe. 

ARTICLE  IV. 

SECTION  I.  The  judicial  power  of  this  State  shall  be  vested  in  one  Supreme  Court, 
and  such  inferior  courts  as  the  General  Assembly  shall,  from  time  to  time,  oi'dain 
and  establish, 

SEC.  II.  The  Supreme  Court  shall  be  holden  at  the  seat  of  government,  and 
shall  have  an  appellate  jurisdiction  only,  except  in  cases  relating  to  the  revenue,  in 
cases  of  mandamus,  and  in  such  cases  of  impeachment  as  may  be  required  to  be 
tried  before  it. 

SEC.  III.  The  Supreme  Court  shall  consist  in  a  Chief  Justice  and  three  Asso- 
ciates, any  two  of  whom  shall  form  a  quorum.  The  number  of  Justices  may, 
however,  be  increased  by  the  General  Assembly,  after  the  year  one  thousand  eight 
hundred  and  twenty-four. 

SEC.  IV.  The  Justices  of  the  Supreme  Court,  and  the  Judges  of  the  inferior 
courts,  shall  be  appointed  by  joint  ballot  of  both  branches  of  the  General  Assembly, 
and  commissioned  by  the  Governor,  and  shall  hold  their  offices  during  good  be- 
havior until  the  end  of  the  first  session  of  the  General  Assembly  which  shall  be 
begun  and  held  after  the  first  day  of  January,  in  the  year  of  our  Lord  one  thousand 
eight  hundred  and  twenty-four,  at  which  time  their  commissions  shall  expire :  and 
until  the  expiration  of  which  time,  the  said  Justices,  respectively,  shall  hold  Circuit 
Courts  in  the  several  counties,  in  such  manner  and  at  such  times,  and  shall  have  and 
exercise  such  jurisdiction  as  the  General  Assembly  shall  by  law  prescribe.  But  ever 
after  the  aforesaid  period,  the  Justices  of  the  Supreme  Court  shall  be  commissioned 
during  good  behavior,  and  the  Justices  thereof  shall  not  hold  Circuit  Courts,  un- 
less required  by  law. 

SEC.  V.  The  Judges  of  the  inferior  courts  shall  hold  their  offices  during  good 
behavior,  but  for  any  reasonable  cause,  which  shall  not  be  sufficient  ground  for  im- 
peachment, both  the  Judges  of  the  Supreme  and  inferior  courts,  shall  be  removed 
from  office  on  the  address  of  two-thirds  of  each  branch  of  the  General  Assembly  : 
provided  always,  that  no  member  of  either  House  of  the  General  Assembly,  nor 
any  person  connected  with  a  member  by  consanguinity,  or  affinity,  shall  be  appointed 
to  fill  the  vacancy  occasioned  by  such  removal.  The  said  Justices  of  the  Supreme 
Court,  during  their  temporary  appointments,  shall  receive  an  annual  salary  of  one 


ILLINOIS.  437 

thousand  dollars,  payable  quarter-yearly  out  of  the  public  treasury'.  The  Judges  of 
the  inferior  courts,  and  the  Justices  of  the  Supreme  Court  who  may  be  appointed 
after  the  end  of  the  first  session  of  the  General  Assembly  which  shall  be  begun 
and  held  after  the  first  day  of  January,  in  the  year  of  our  Lord  one  thousand  eight 
hundred  and  twenty-four,  shall  have  adequate  and  competent  salaries,  which  shall 
not  be  diminished  during  their  continuance  in  office. 

SEC.  VI.  The  Supreme  Court,  or  a  majority  of  the  Justices  thereof,  the  Circuit 
Courts,  or  the  Justices  thereof,  shall,  respectively,  appoint  their  own  Clerks. 

SEC.  VII.  All  process,  writs,  and  other  proceedings,  shall  run  in  the  name  of 
"  The  people  of  the  State  of  Illinois."  All  prosecutions  shall  be  carried  on  "In 
the  name  and  by  the  authority  of  the  people  of  the  State  of  Illinois,"  and  conclude, 
"  against  the  peace  and  dignity  of  the  same." 

SEC.  VIII.  A  competent  number  of  Justices  of  the  Peace  shall  be  appointed  in 
each  county,  in  such  manner  as  the  General  Assembly  may  direct,  whose  time  of 
kervice,  power,  and  duties  shall  be  regulated  and  defined  by  law.  And  Justices  of 
the  Peace,  when  so  appointed,  shall  be  commissioned  by  the  Governor. 

ARTICLE  V. 

SECTION  I.  The  militia  of  the  State  of  Illinois  shall  consist  of  all  free  male 
able-bodied  persons,  negroes,  mulattoes  and  Indians  excepted,  resident  of  the 
State,  between  the  ages  of  eighteen  and  forty-five  years,  except  such  persons  as 
now  are,  or  hereafter  may  be  exempted  by  the  laws  of  the  United  States  or  of  this 
State,  and  shall  be  armed,  equipped,  and  trained  as  the  General  Assembly  may 
provide  by  law. 

SEC.  II.  No  person  or  persons,  conscientioutly  scrupulous  of  bearing  arms,  shall 
be  compelled  to  do  militia  duty  in  time  of  peace,  provided  such  person  or  persons 
shall  pay  an  equivalent  for  such  exemption. 

SEC.  III.  Company,  battalion  and  regimental  officers,  staff  officers  excepted, 
shall  be  elected  by  the  persons  composing  their  several  companies,  battalions  and 
regiments. 

SEC.  IV.  Brigadier  and  Major  Generals,  shall  be  elected  by  the  officers  of  their 
brigades  and  divisions  respectively. 

SEC.  V.  All  militia  officers  shall  be  commissioned  by  the  Governor,  and  may 
hold  their  commissions  during  good  behavior,  or  until  they  arrive  at  the  age  of  sixty 
years. 

SEC.  VI.  The  militia  shall,  in  all  cases,  except  treason,  felony,  or  breach  of  the 
peace,  be  privileged  from  arrest  during  their  attendance  at  musters  and  elections  of 
officers,  and  in  going  to  and  returning  from  the  same. 

ARTICLE  VI. 

SECTION  I.  Neither  slavery  nor  involuntary  servitude  shall  hereafter  be  intro- 
duced into  this  State,  otherwise  than  for  the  punishment  of  crimes,  whereof  the 
party  shall  have  been  duly  convicted  ;  nor  shall  any  male  person,  arrived  at  the  age 
of  twenty-one  years,  nor  female  person,  arrived  at  the  age  of  eighteen  years,  be 
held  to  serve  any  person  as  a  sen-ant,  under  any  indenture  hereafter  made,  unless 


438  CONSTITUTION  OF 

such  person  shall  enter  into  such  indenture  while  in  a  state  of  perfect  freedom,  and 
on  condition  of  a  bona  fide  consideration  received  or  to  be  received  for  their  ser- 
vice. Nor  shall  any  indenture  of  any  negro  or  mulatto  hereafter  made  and  exe- 
cuted out  of  this  State,  or  if  made  in  this  State,  where  the  term  of  service  exceeds 
one  year,  be  of  the  least  validity,  except  those  given  in  cases  of  apprenticeship. 

SEC.  II.  No  person  bound  to  labor  in  any  other  State,  shall  be  hired  to  labor  in 
this  State,  except  within  the  tract  reserved  for  the  salt  works  near  Shawneetown  ; 
nor  even  at  that  place  for  a  longer  period  than  one  year  at  any  one  time ;  nor 
shall  it  be  allowed  there  after  the  year  one  thousand  eight  hundred  and  twenty- 
five  :  any  violation  of  this  article  shall  effect  the  emancipation  of  such  person  from 
his  obligation  to  service. 

SEC.  III.  Each  and  every  person  who  has  been  bound  to  service  by  contract  or 
indenture,  in  virtue  of  the  laws  of  the  Illinois  territory  heretofore  existing,  and  in 
conformity  to  the  provisions  of  the  same,  without  fraud  or  collusion,  shall  be  held 
to  a  specific  performance  of  their  contracts  or  indentures ;  and  such  negroes  and 
mulattoes  as  have  been  registered  in  conformity  with  the  aforesaid  laws,  shall  serve 
out  the  time  appointed  by  said  laws  :  provided,  however,  that  the  children  hereafter 
born  of  such  person,  negroes,  or  mulattoes,  shall  become  free,  the  males  at  the  age 
of  twenty-one  years,  the  females  at  the  age  of  eighteen  years.  Each  and  every 
child  born  of  indentured  parents,  shall  be  entered  with  the  Clerk  of  the  county  in 
which  they  reside,  by  their  owners,  within  six  months  after  the  birth  of  said  child. 

ARTICLE  VII. 

SECTION  I.  Whenever  two-thirds  of  the  General  Assembly  shall  think  it  neces- 
sary to  alter  or  amend  this  Constitution,  they  shall  recommend  to  the  electors  at 
the  next  election  of  members  to  the  General  Assembly,  to  vote  for  or  against  a 
Convention ;  and  if  it  shall  appear  that  a  majority  of  all  the  citizens  of  the  State 
voting  for  Representatives  have  voted  for  a  Convention,  the  General  Assembly  shall, 
at  their  next  session,  call  a  Convention,  to  consist  of  as  many  members  as  there 
may  be  in  the  General  Assembly ;  to  be  chosen  in  the  same  manner,  at  the  same 
place,  and  by  the  same  electors  that  choose  the  General  Assembly,  and  which  Con- 
vention shall  meet  within  three  months  after  the  said  election,  for  the  purpose  of 
revising,  altering  or  amending  this  Constitution. 

ARTICLE  VIII. 

That  the  general,  great,  and  essential  principles  of  liberty  and  free  government 
may  be  recognized,  and  unalterably  established :  We  declare : 

SECTION  I.  That  all  men  are  born  equally  free  and  independent,  and  have  cer- 
tain inherent,  and  indefeasible  rights ;  among  which  are,  those  of  enjoying  and  de- 
fending life  and  liberty,  and  of  acquiring,  possessing,  arid  protecting  property,  and 
reputation,  and  of  pursuing  their  own  happiness. 

SEC.  II.  That  all  power  is  inherent  in  the  people  ;  and  all  free  governments  are 
founded  on  their  authority,  and  instituted  for  their  peace,  safety,  and  happiness. 

SEC.  III.   That  all  men  have  a  natural  and  indefeasible  right  to  worship  Al- 


ILLINOIS.  439 

mighty  God  according  to  the  dictates  of  their  own  consciences.  That  no  man 
can  of  right  be  compelled  to  attend,  erect,  or  support  any  place  of  worship,  or  to 
maintain  any  ministry,  against  his  consent.  That  no  human  authority  can,  in  any 
case  whatever,  control  or  interfere  with  the  rights  of  conscience ;  and  that  no 
preference  shall  ever  be  given  by  law  to  any  religious  establishments  or  modes  of 
worship. 

SEC.  IV.  That  no  religious  test  shall  ever  be  required  as  a  qualification  to  any 
office  or  public  trust  under  this  State. 

SEC.  V.    That  elections  shall  be  free  and  equal. 

SEC.  VI.    That  the  right  of  the  trial  by  jury  shall  remain  inviolate. 

SEC.  VII.  That  the  people  shall  be  secure  in  their  persons,  houses,  papers  and 
possessions,  from  unreasonable  searches  and  seizures ;  and  that  general  warrants, 
whereby  an  officer  may  be  commanded  to  search  suspected  places  without  evidence 
of  the  fact  committed,  or  to  seize  any  person  or  persons  not  named,  whose  offences 
are  not  particularly  described  and  supported  by  evidence,  are  dangerous  to  liberty, 
and  ought  not  to  be  granted. 

SEC.  VIII.  That  no  freeman  shall  be  imprisoned  or  disseized  of  his  freehold, 
liberties  or  privileges,  or  outlawed  or  exiled,  or  in  any  manner  deprived  of  his  life, 
liberty  or  property,  but  by  the  judgment  of  his  peers  or  the  law  of  the  land.  And 
all  lands  which  have  been  granted  as  a  common  to  the  inhabitants  of  any  town, 
hamlet,  vi!l  I.TO  or  corporation,  by  any  person,  body  politic  or  corporate,  or  by  any 
government  having  power  to  make  such  grant,  shall  forever  remain  common  to 
the  inhabitants  of  such  town,  hamlet,  village  or  corporation  :  and  the  said  commons 
shall  not  be  leased,  sold  or  divided,  under  any  pretence  whatever :  provided, 
howi-ver,  that  nothing  in  this  section  shall  be  so  construed  as  to  affect  the  commons 
of  Cahokia  or  Prairie  du  Pont :  provided,  also,  that  the  General  Assembly  shall 
have  power  and  authority  to  grant  the  same  privileges  to  the  inhabitants  of  the  said 
villages  of  Cahokia  and  Prairie  du  Pont  as  are  hereby  granted  to  the  inhabitants  of 
other  towns,  hamlets  and  villages. 

SEC.  IX.  That  in  all  criminal  prosecutions,  the  accused  hath  aright  to  be  heard 
by  himself  and  counsel,  to  demand  the  nature  and  cause  of  the  accusation  against 
him ;  to  meet  the  witnesses  face  to  face,  to  have  compulsory  process  to  compel  the 
attendance  of  witnesses  in  his  favor ;  and  in  prosecutions  by  indictment  or  informa- 
tion, a  speedy  public  trial  by  an  impartial  jury  of  the  vicinage  :  and  that  he  shall  not 
be  compelled  to  give  evidence  against  himself. 

SEC.  X.  That  no  person  shall,  for  any  indictable  offence,  be  proceeded  against 
criminally  by  information,  except  in  cases  arising  in  the  land  or  naval  forces,  or  the 
militia  when  in  actual  sen-ice,  in  time  of  war  or  public  danger,  by  leave  of  the 
courts,  for  oppression  or  misdemeanor  in  office. 

SEC.  XI.    No  person  shall,  for  the  same  offence,  be  twice  put  in  jeopardy  of  his 
life  or  limb  ;  nor  shall  any  man's  property  be  taken  or  applied  to  public  use,  without 
the  consent  of  his  Representatives  in  the  General  Assembly,  nor  without  just  com- 
pensation being  made  to  him. 
SBC.  XII.    Every  person  within  this  State  ought  to  find  a  certain  remedy  in  the 


440  ]  CONSTITUTION  OF  ILLINOIS. 

laws,  for  all  injuries  or  wrongs  which  he  may  receive  in  his  person,  property  or 
character;  he  ought  to  obtain  right  and  justice  freely,  and  without  being  obliged 
to  purchase  it,  completely  and  without  denial,  promptly  and  without  delay,  con- 
formably to  the  laws. 

SEC.  XIII.  That  all  persons  shall  be  bailable  by  sufficient  sureties,  unless  for 
capital  offences,  where  the  proof  is  evident,  or  the  presumption  great ;  and  tho  priv- 
ilege of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless  when  in  cases  of  re- 
bellion or  invasion,  the  public  safety  may  require  it. 

SEC.  XIV.  All  penalties  shall  be  proportioned  to  the  nature  of  the  offence,  tho 
true  design  of  all  punishment  being  to  reform,  not  to  exterminate  mankind. 

SEC.  XV.  No  person  shall  be  imprisoned  for  debt,  unless  upon  refusal  to  deliver 
up  his  estate  for  the  benefit  of  his  creditors,  in  such  manner  as  shall  be  prescribed 
by  law,  or  in  cases  where  there  is  strong  presumption  of  fraud. 

SEC.  XVI.  No  ex  post  facto  law,  nor  any  law  impairing  the  validity  of  con- 
tracts, shall  ever  be  made;  and  no  conviction  shall  work  corruption  of  blood,  nor 
forfeiture  of  estate. 

SEC.  XVII.  That  no  person  shall  be  liable  to  be  transported  out  of  this  State 
for  any  offence  committed  within  the  same. 

SBC.  XVIII.  That  a  frequent  recurrence  of  the  fundamental  principles  of  civil 
gOTcrnment  is  absolutely  necessary  to  preserve  the  blessings  of  liberty. 

SEC.  XIX.  That  the  people  have  a  right  to  assemble  together,  in  a  peaceable 
manner,  to  consult  for  their  common  good,  to  instruct  their  Representatives,  and  to 
apply  to  the  General  Assembly  for  redress  of  grievances. 

SEC.  XX.  That  the  mode  of  levying  a  tax  shall  be  by  valuation,  so  that  every 
person  shall  pay  a  tax  in  proportion  to  the  value  of  the  property  he  or  she  has  in 
his  or  her  possession. 

SEC.  XXI.  That  there  shall  bo  no  other  banks  or  monied  institutions  in  this 
State  but  those  already  provided  by  law,  except  a  State  bank  and  its  branches, 
which  may  be  established  and  regulated  by  the  General  Assembly  of  the  State,  as 
they  may  think  proper. 

SEC.  XXII.  The  printing  presses  shall  be  free  to  every  person  who  undertakes 
to  examine  the  proceedings  of  the  General  Assembly,  or  of  any  branch  of  govern- 
ment; and  no  law  shall  ever  be  made  to  restrain  the  right  thereof.  The  free  com- 
munication of  thoughts  and  opinions  is  one  of  the  invaluable  rights  of  man ;  and 
every  citizen  may  freely  speak,  write,  and  print  on  any  subject,  being  responsible 
for  the  abuse  of  that  liberty. 

SEC.  XXIII.  In  prosecutions  for  the  publication  of  papers  investigating  the 
official  conduct  of  officers  or  of  men  acting  in  a  public  capacity,  or  where  the  mat" 
ter  published  is  proper  for  public  information,  the  truth  thereof  may  be  given  in 
evidence  ;  and  in  all  indictments  for  libels,  the  jury  shall  have  the  right  of  deter- 
mining both  the  law  and  the  fact,  under  the  direction  of  the  court,  as  in  other  case?. 

Done  in  Convention  at  Kaskaskia,  the  twenty-sixth  day  of  August,  in  the  year 
of  our  Lord  one  thousand  eight  hundred  and  eighteen,  and  of  the  Independence  of 
the  United  States  of  America  the  forty-third. 


STATE  OF  MICHIGAN.  441 


CONSTITUTION 


THE  STATE  OF  MICHIGAN 


WE,  THE  PEOPLE  of  the  Tcrri ton' of  Michigan,  as  established  by  the  act  of  Con- 
gress of  the  eleventh  of  January,  eighteen  hundred  and  five,  in  conformity  to  the 
fifth  article  of  the  ordinance  providing  for  the  government  of  the  territory  of  the 
I'nitfd  States  north-west  of  the  river  Ohio,  believing  that  the  time  has  arrived  when 
our  present  political  condition  ought  to  cease,  and  the  right  of  self-government  bo 
asserted ;  and  availing  ourselves  of  that  provision  of  the  aforesaid  ordinance  of  the- 
Congress  of  the  United  States,  of  the  thirteenth  day  of  July,  seventeen  hundred  and 
eighty-seven,  and  the  acts  of  Congress  passed  in  accordance  therewith,  which  enti~- 
tlrd  us  to  admission  into  the  Union,  upon  a  condition  which  has  been  fulfilled,  do,, 
by  our  delegates  in  Convention  assembled,  mutually  agree  to  form  ourselves  into  a 
free  and  independent  State,  by  the  style  and  title  of  "  The  State  of  Michigan,"  and 
do  ordain  and  establish  the  following  Constitution  for  the  government  of  the  same  :. 

ARTICLE  I. 

SECTION  I.    All  political  power  is  inherent  in  the  people. 

SEC.  II.  Government  is  instituted  for  the  protection,  security,  and  benefit  of 
the  people  ;  and  they  have  the  right  at  all  times  to  alter  or  reform  the  same,  and  to 
abolish  one  form  of  government  and  establish  another,  whenever  the  public  good 
requires  it. 

SEC.  III.  No  man  or  set  of  men  are  entitled  to  exclusive  or  separate  privileges. 

SEC.  IV.  Every  person  has  a  right  to  worship  Almighty  God  according  to  the 
dictates  of  his  own  conscience;  and  no  person  can  of  rieht  be  compelled  to  attend, 
erect,  or  support,  against  his  will,  any  place  of  religious  worship,  or  pay  any  tithes, 
taxes,  or  other  rates  for  the  support  of  any  minister  of  the  gospel,  or  teacher  of 
religion. 

SEC.  V.  No  money  shall  be  drawn  from  the  treasury  for  the  benefit  of  religious 
societies,  or  theological  or  religious  seminaries » 


442  CONSTITUTION  OF 

SEC.  VI.  The  civil  and  political  rights,  privileges  and  capacities  of  no  individual 
shall  be  diminished  or  enlarged  on  account  of  his  opinions  or  belief  concerning 
matters  of  religion. 

SEC.  VII.  Every  person  may  freely  speak,  write,  and  publish  his  sentiments  on 
all  subjects,  being  responsible  for  the  abuse  of  that  right ;  and  no  laws  shall  be 
passed  to  restrain  or  abridge  the  liberty  of  speech  or  of  the  press.  In  all  pi-osecu- 
tions  or  indictments  for  libels,  the  truth  may  be  given  in  evidence  to  the  jury  ;  and 
if  it  shall  appear  to  the  jury,  that  the  matter  charged  as  libelous  is  true,  and  was 
published  with  good  motives  and  for  justifiable  ends,  the  party  shall  be  acquitted ; 
and  the  jury  shall  have  the  right  to  determine  the  law  and  the  fact. 

SEC.  VIII.  The  person,  houses,  papers,  and  possessions  of  every  individual  shall 
be  secure  from  unreasonable  searches  and  seizures ;  and  no  warrant  to  search  any 
place,  or  to  seize  any  person  or  things,  shall  issue  without  describing  them,  nor 
without  probable  cause,  supported  by  oath  or  affirmation. 

SEC.  IX.    The  right  of  trial  by  jury  shall  remain  inviolate. 

SEC.  X.  In  all  criminal  prosecutions,  the  accused  shall  have  the  right  to  a  speedy 
and  public  trial,  by  an  impartial  jury  of  the  vicinage ;  to  be  confronted  with  the 
witnesses  against  him ;  to  have  compulsory  process  for  obtaining  witnesses  in  his 
favor ;  to  have  the  assistance  of  counsel  far  his  defence ;  and  in  all  civil  cases,  in 
which  personal  liberty  may  be  involved,  the  trial  by  jury  shall  not  be  refused. 

SEC.  XI.  No  person  shall  be  held  to  answer  for  a  criminal  offience,  unless  on  the 
presentment  or  indictment  of  a  Grand  Jury,  except  in  cases  of  impeachment,  or  in 
cases  cognizable  by  Justices  of  the  Peace,  or  arising  in  the  army  or  militia  when  in 
actual  service  in  time  of  war  or  public  danger. 

SEC.  XII.  No  person  for  the  same  offence  shall  be  twice  put  in  jeopardy  of  pun- 
ishment ;  all  persons  shall,  before  conviction,  be"  bailable  by  sufficient  sureties,  except 
for  capital  offences,  when  the  proof  is  evident,  or  the  presumption  great ;  and  the 
privilege  of  the  writ  of  habeas  corpus  shall  not  be  suspended,  unless  when,  in  case 
of  rebellion  or  invasion,  the  public  safety  may  require  it. 

SEC.  XIII.  Every  person  has  a  right  to  bear  arms  for  the  defence  of  himself  and 
the  State. 

SEC.  XIV.  The  military  shall,  in  all  cases  and  at  all  times,  be  in  strict  subordi- 
nation to  the  civil  power. 

SEC.  XV.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house  without 
the  consent  of  the  owner,  nor  in  time  of  war,  but  in  a  manner  prescribed  by  law. 

SEC.  XVI.  Treason  against  the  State  shall  consist  only  in  levying  war  against  it, 
or  in  adhering  to  its  enemies,  giving  them  aid  and  comfort ;  no  person  shall  be  con- 
victed of  treason,  unless  on  the  testimony  of  two  witnesses  to  the  same  overt  act, 
or  on  confession  in  open  court. 

SEC.  XVII.  No  bill  of  attainder,  ex  post  facto  law,  or  law  imparing  the  obliga- 
tion of  contracts,  shall  be  passed. 

SEC.  XVIII.  Excessive  bail  shall  not  be  required ;  excessive  fines  shall  not  be 
imposed ;  and  cruel  and  unjust  punishments  shall  not  be  inflicted. 


MICHIGAN.  443 

SEC.  XIX.  The  property  of  no  person  shall  be  taken  for  public  use,  without  just 
compensation  therefor. 

SKC.  XX.  The  people  shall  have  the  right  freely  to  assemble  together,  to  consult 
for  the  common  good,  to  instruct  their  Representatives,  and  to  petition  the  Legisla- 
ture for  redress  of  grievances. 

SEC.  XXI.  All  acts  of  the  Legislature,  contrary  to  this  or  any  other  article  of  this 
Constitution,  shall  be  void. 

ARTICLE  II. 

SECTION  I.  In  all  elections,  every  white  male  citizen  above  the  age  of  twenty-one 
years,  having  resided  in  the  State  six  months  next  preceding  any  election,  shall  be 
entitled  to  vote  at  such  election  ;  and  every  white  male  inhabitant  of  the  age  afore- 
said, who  may  be  a  resident  of  the  State  at  the  time  of  the  signing  of  this  Consti- 
tution, shall  have  the  right  of  voting  as  aforesaid  ;  but  no  such  citizen  or  inhabitant 
shall  be  entitled  to  vote,  except  in  the  district,  county,  or  township,  in  which  he 
•hall  actually  reside  at  the  time  of  such  election. 

SEC.  II.  All  votes  shall  be  given  by  ballot,  except  for  such  township  officers  as 
may,  by  law,  be  directed  to  be  otherwise  chosen. 

SEC.  III.  Electors  shall,  in  all  cases  except  treason,  felony,  or  breach  of  the 
peace,  be  privileged  from  arrest  during  their  attendance  at  elections,  and  in  going 
to  and  returning  from  the  same. 

SEC.  IV.  No  elector  shall  be  obliged  to  do  militia  duty  on  the  days  of  election, 
except  in  time  of  war  or  public  danger. 

SKC.  V.  No  person  shall  be  deemed  to  have  lost  his  residence  in  this  State,  by 
reason  of  his  absence  on  business  of  the  United  States,  or  of  this  State. 

SEC.  VI.  No  soldier,  seaman,  or  marine,  in  the  army  or  navy  of  the  United 
States,  shall  be  deemed  a  resident  of  this  State,  in  consequence  of  being  stationed 
in  any  military  or  naval  place  within  the  same. 

ARTICLE  III. 

SECTION  I.  The  powers  of  the  government  shall  be  divided  into  three  distinct 
departments;  the  legislative,  the  executive,  and  the  judicial;  and  one  department 
shall  never  exercise  the  powers  of  another,  except  in  such  cases  as  are  expressly 
provided  for  in  this  Constitution. 

ARTICLE  IV. 

SECTION  I.  The  legislative  power  shall  be  vested  in  a  Senate  and  House  of  Rep- 
resentatives. 

SEC.  II.  The  number  of  the  members  of  the  House  of  Representatives  shall 
never  be  less  than  forty-eight,  nor  more  than  one  hundred :  and  the  Senate  shall,  at 
all  times,  equal  in  number  one-third  of  the  House  of  Representatives,  as  nearly  as 
may  be. 


444  CONSTITUTION  OF 

SEC.  III.  The  Legislature  shall  provide  by  law  for  an  enumeration  of  the  inhab- 
itants of  this  State  in  the  years  eighteen  hundred  and  thirty-seven,  and  eighteen, 
hundred  and  forty-five,  and  every  ten  years  after  the  last  mentioned  time :  and  at 
their  first  session  after  each  enumeration  so  made  as  aforesaid,  and  also  after  each 
enumeration  made  by  the  authority  of  the  United  States,  the  Legislature  shall  ap- 
portion anew  the  Representatives  and  Senators  among  the  several  counties  and  dis- 
tricts, according  to  the  number  of  white  inhabitants. 

SEC.  IV.  The  Representatives  shall  be  chosen  annually  on  the  1st  Tuesday  of  No- 
vember, by  the  electors  of  the  sevei'al  counties  or  districts  into  which  the  State 
shall  be  divided  for  that  purpose.  Each  organized  county  shall  be  entitled  to  at 
least  one  Representative ;  but  no  county  hereafter  organized  shall  be  entitled  to  a 
separate  Representative,  until  it  shall  have  attained  a  population  equal  to  the  ratio 
of  representation  hereafter  established. 

SEC.  V.  The  Senators  shall  be  chosen  for  two  years,  at  the  same  time  and  in  the 
same  manner  as  the  Representatives  are  required  to  be  chosen.  At  the  first  session 
of  the  Legislature  under  this  Constitution,  they  shall  be  divided  by  lot  from  their 
respective  districts,  as  nearly  as  way  be,  into  two  equal  classes  ;  the  seats  of  the 
Senators  of  the  first  class  shall  be  vacated  at  the^  expiration  of  the  first  year,  and  of 
the  second  class  at  the  expiration  of  the  second  year:  so  that  one-half  thereof,  as 
nearly  as  may  be,  shall  be  chosen  annually  thereafter. 

SEC.  VI.  The  State  shall  be  divided,  at  each  new  apportionment,  into  a  number 
of  not  less  than  four,  nor  more  than  eight,  senatorial  districts,  to  be  always  compos- 
ed of  contiguous  territory,  so  that  each  district  shall  elect  an  equal  number  of  sena- 
tors annually,  as  nearly  as  may  be  ;  and  no  county  shall  be  divided  in  the  formation 
of  such  districts. 

SEC.  VII.  Senators  and  Representatives  shall  be  citizens  of  the  United  States, 
and  be  qualified  electors  in  the  respective  counties  and  districts  which  they  repre- 
sent ;  and  a  removal'  from  their  respective  counties  or  districts  shall  be  deemed  a 
vacation  of  their  seats. 

SEC.  VIII.  No  person  holding  any  office  under  the  United  States,  or  of  this 
State,  officer  of  the  militia,  Justices  of  the  Peace,  Associate  Judges  of  the  Circuit 
and  County  Courts,  and  Postmasters  excepted,  shall  be  eligible  to  either  house  of 
the  Legislature. 

SEC.  IX.  Senators  and  Representatives  shall,  in  all  cases  except  treason,  felony, 
or  breach  of  the  peace,  be  privileged  from  arrest,  nor  shall  they  be  subject  to  any 
civil  process,  during  the  session  of  the  Legislature,  nor  for  fifteen  days  next  before 
the  commencement  and  after  the  termination  of  each  session. 

SEC.  X.  A  majority  of  each  house  shall  constitute  a  quorum  to  do  business  ;  but 
a  smaller  number  may  adjourn  from  day  to  day,  andTnay  compel  the  attendance  of 
absent  members,  in  such  manner  and  under  such  penalties  as  each  house  may  pro- 
vide. Each  house  shall  choose  its  own  officers. 

SEC.  XI.  Each  House  shall  determine  the  rules  of  its  proceedings,  and  judge  of 
the  qualifications,  elections,  and  returns  of  its  own  members ;  and  may,  with  the 


MICHIGAN.  445 

concurrence  of  two-thirds  of  all  the  members  elected,  expel  a  member ;  but  no  mem- 
ber shall  be  expelled  a  second  time  for  the  same  cause,  nor  for  any  cause  known  to 
his  constituents  antecedent  to  his  election. 

SEC.  XII.  Each  house  shall  keep  a  journal  of  its  proceedings,  and  publish  the 
same,  except  such  parts  as  may  require  secrecy ;  and  the  yeas  and  nays  of  the 
members  of  either  house,  on  any  question,  shall,  at  the  request  of  one-fifth  of  the 
members  present,  be  entered  on  the  journal.  Any  member  of  either  house  shall 
have  liberty  to  dissent  from,  and  protest  against,  any  act  or  resolution  which  he  may 
think  injurious  to  the  public  or  an  individual,  and  have  the  reasons  of  his  dissent 
entered  on  the  journal. 

SEC.  XIII.  In- all  elections  by  either  or  both  houses,  the  votes  shall  be  given 
viva  voce ;  and  all  votes  on  nominations  made  to  the  Senate  shall  be  taken  by  yeas 
and  nays,  and  published  with  the  journals  of  its  proceedings. 

SEC.  XIV.  The  doors  of  each  house  shall  be  open,  except  when  the  public 
welfare  shall  require  secrecy;  neither  house  shall,  without  the  consent  of  the  other, 
adjourn  for  more  than  three  days,  nor  to  any  other  place  than  that  where  the  Legis- 
lature may  then  be  in  session. 

SEC.  XV.  Any  bill  may  originate  in  either  house  of  the  Legislature. 

SEC.  XVI.  Every  bill  passed  by  the  Legislature  shall,  before  it  becomes  a  law, 
be  presented  to  the  Governor ;  if  he  approve,  he  shall  sign  it ;  but  if  not,  he  shall 
return  it,  with  his  objections,  to  that  house  in  which  it  originated,  who  shall  enter 
the  objections  at  large  upon  their  journals,  and  proceed  to  reconsider  it.  If,  after 
such  reconsideration,  two-thirds  of  all  the  members  present  agree  to  pass  the  bill, 
it  shall  be  sent,  with  the  objections,  to  the  other  house,  by  whom  it  shall  likewise  be 
reconsidered;  and  if  approved  al»o  by  two-thirds  of  all  the  members  present  in  that 
house,  it  shall  become  a  law  ;  but  in  such  cases,  the  votes  of  both  houses  shall  be 
determined  by  yeas  and  nays,  and  the  names  of  the  members  voting  for  or  against 
the  bill  shall  be  entered  on  the  journals  of  each  house  respectively.  And  if  any 
bill  be  not  returned  by  the  Governor  within  ten  days,  Sundays  excepted,  after  it  has 
been  presented  to  him,  the  same  shall  become  a  law,  in  like  manner  as  if  he  had 
signed  it,  unless  the  Legislature,  by  their  adjournment,  prevent  its  return,  in  which 
•case  it  shall  not  become  a  law. 

SEC.  XVII.  Every  resolution  to  which  the  concurrence  of  the  Senate  and  House 
of  Representatives  may  be  necessary,  except  in  case*  of  adjournment,  shall  be 
presented  to  the  Governor,  and,  before  the  same  shall  take  effect,  shall  be  pro- 
ceeded upon  in  the  game  manner  as  in  the  case  of  a  bill. 

SEC.  XVIII.  The  members  of  the  Legislature  shall  receive,  for  their  services,  a 
compensation  to  be  ascertained  by  law,  and  paid  out  of  the  public  treasuiy  ;  but  no 
increase  of  the  compensation  shall  take  effect  during  the  term  for  which  the  mem- 
bers of  either  house  shall  have  been  elected ;  and  such  compensation  shall  never 
exceed  three  dollars  a  day. 

SEC.  XIX.   No  member  of  the  Legislature  shall  receive  any  civil  appointment 


446  CONSTITUTION  OF 

from  the  Governor  and  Senate,  or  from  the  Legislature,  during  the  term  for  which  he 
is  elected. 

SEC.  XX.  The  Governor  shall  issue  writs  of  election  to  fill  such  vacancieg  as 
may  occur  in  the  Senate  and  House  of  Representatives. 

SEC.  XXI.  The  Legislature  shall  meet  on  the  first  Monday  in  January  in  every 
year,  and  at  no  other  period,  unless  otherwise  directed  by  law,  or  provided  for  in 
this  Constitution. 

SEC.  XXII.  The  style  of  the  laws  of  this  State  shall  be — "  Be  it  enacted  by  the 
Senate  and  House  of  Representatives  of  the  State  of  Michigan." 

ARTICLE  V. 

SECTION  I.  The  supreme  executive  power  shall  be  vested  in  a  Governor,  who 
shall  hold  his  office  for  two  years  ;  and  a  Lieutenant  Governor  shall  be  chosen  at  the 
same  time  and  for  the  same  term. 

SEC.  II.  No  person  shall  be  eligible  to  the  office  of  Governor  or  Lieutenant  Gov- 
ernor, who  shall  not  have  been  five  years  a  citizen  of  the  United  States,  and  a  resi- 
dent of  this  State  two  years  next  preceding  the  election. 

SEC.  III.  The  Governor  and  Lieutenant  Governor  shall  be  elected  by  the  electors 
at  the  times  and  places  of  choosing  members  of  the  Legislature.  The  persons  hav- 
ing the  highest  number  of  votes  for  Governor  and  Lieutenant  Governor  shall  be  elect- 
ed ;  but  in  case  two  or  more  have  an  equal  and  the  highest  number  of  votes  for 
Governor  or  Lieutenant  Governoi1,  the  Legislature  shall  by  joint  vote  choose  one  of  the 
said  persons,  so  having  an  equal  and  the  highest  number  of  votes,  for  Governor  or 
Lieutenant  Governor. 

SKC.  IV.  The  returns  of  every  election  for  Governor  and  Lieutenant  Governor 
shall  be  sealed  up  and  transmitted  to  the  seat  of  government,  by  the  returning  offi- 
cers, directed  to  the  President  of  the  Senate,  who  shall  open  and  publish  them  in 
the  presence  of  the  members  of  both  houses. 

SEC.  V.  The  Governor  shall  be  Commander- in-Chief  of  the  militia,  and  of  the  ar- 
my and  navy  of  this  State. 

Sec.  VI.  He  shall  transact  all  executive  business  with  the  officers  of  govern- 
ment, civil  and  military ;  and  may  require  information,  in  writing,  from  the  officers 
in  the  executive  department,  upon  any  subject  relating  to  the  duties  of  their  respec- 
tive offices. 

SEC.  VII.    He  shall  take  care  that  the  laws  be  faithfully  executed. 

SEC.  VIII.  He  shall  have  power  to  convene  the  Legislature  on  extraordinary  oc- 
casions. He  shall  communicate  by  message  to  the  Legislature,  at  every  session, 
the  condition  of  the  State,  and  recommend  such  matters  to  them  as  he  shall  deem 
expedient. 

SEC.  IX.  He  shall  have  power  to  adjourn  the  Legislature  to  such  time  as  he  may 
think  proper,  in  case  of  a  disagreement  between  the  two  houses  with  respect  to  the 
time  of  adjournment,  but  not  to  a  period  beyond  the  next  annual  meeting. 

SEC.  X.   He  may  direct  the  Legislature  to  meet  at  some  other  place  than  the  seat 


MICHIGAN.  447 

of  government,  if  that  shall  become,  after  its  adjournment,  dangerous  from  a  com- 
mon enemy  or  a  contagious  disease. 

SEC.  XI.  He  shall  have  power  to  grant  reprieves  and  pardons  after  conviction, 
except  in  cases  of  impeachment. 

SKC.  XII.  When  any  office,  the  appointment  to  which  is  vested  in  the  Governor 
and  Senate,  or  in  the  Legislature,  becomes  vacant  during  the  recess  of  the  Legisla- 
ture, the  Governor  shall  have  power  to  fill  such  vacancy  by  granting  a  commission, 
winch  shall  expire  at  the  end  of  the  succeeding  session  of  the  Legislature. 

SEC.  XIII.  In  case  of  the  impeachment  of  the  Governor,  his  removal  from  of- 
fice, death,  resignation,  or  absence  from  the  State,  the  powers  and  duties  of  the  of- 
fice shall  devolve  upon  the  Lieutenant  Governor  until  such  disability  shall  cease,  or 
the  vacancy  be  filled. 

SEC.  XIV.  If,  during  the  vacancy  of  the  office  of  Governor,  the  Lieutenant  Gov- 
ernor be  impeached,  displaced,  resign,  die,  or  be  absent  from  the  State,  the  Presi- 
dent of  the  Senate,  pro  tempore,  shall  act  as  Governor,  until  the  vacancy  be  filled. 

SEC.  XV.  The  Lieutenant  Governor  shall,  by  virtue  of  his  office,  be  President  of 
the  Senate  ;  in  committee  of  the  whole,  he  may  debate  on  all  questions ;  and,  when 
there  is  an  equal  division,  he  shall  give  the  casting  vote. 

SEC.  XVI.  No  member  of  Congress,  nor  any  other  person  holding  office  under 
the  United  States,  or  this  State,  shall  execute  the  office  of  Governor. 

SEC.  XVII.  Whenever  the  office  of  Governor  or  Lieutenant  Governor  becomes 
vacant,  the  person  exercising  the  powers  of  Governor  for  the  time  being,  shall  give 
notice  thereof,  and  the  elector*  shall,  at  the  next  succeeding  annual  election  for 
members  of  the  Legislature,  choose  a  person  to  fill  such  vacancy. 

SEC.  XVIII.  The  Governor  shall,  at  stated  times,  receive  for  his  services  a  com- 
pensation, which  shall  neither  be  increased  nor  diminished  during  the  term  for  which 
he  has  been  elected. 

SEC.  XIX.  The  Lieutenant  Governor,  except  when  acting  as  Governor,  and  the 
President  of  the  Senate,  pro  tempore,  shall  each  receive  the  same  compensation  as 
shall  be  allowed  to  the  Speaker  of  the  House  of  Representatives. 

SEC.  XX.  A  great  seal  for  the  State  shall  be  provided  by  the  Governor,  which 
shall  contain  the  device  and  inscriptions  represented  and  described  in  the  papers  re- 
lating thereto,  signed  by  the  President  of  the  Convention,  and  deposited  in  the  office 
of  the  Secretary  of  the  Territory.  It  shall  be  kept  by  the  Secretary  of  State  ;  and  all 
official  acts  of  the  Governor,  his  approbation  of  the  laws  excepted,  shall  be  thereby 
authenticated. 

SEC.  XXI.  All  grants  and  commissions  shall  be  in  the  name,  and  by  the  authori- 
ty, of  the  people  of  the  State  of  Michigan. 

ARTICLE  VI. 

SECTION  I.  The  judicial  power  shall  be  vested  in  one  Supreme  Court,  and  in  such 
other  courts  as  the  Legislature  may  from  time  to  time  establish. 
SEC.  II.  The  Judges  of  the  Supreme  Court  shall  hold  their  offices  for  the  term  of 


448  CONSTITUTION  OF 

seven  years  ;  they  shall  be  nominated,  and  by  and  with  the  advice  and  consent  of  tho 
Senate,  appointed  by  the  Governor.  They  shall  receive  aji  adequate  compensation, 
which  shall  not  be  diminished  during  their  continuance  in  office.  But  they  shall  re- 
ceive no  fees  nor  perquisites  of  office,  nor  hold  any  other  office  of  profit  or  trust  un- 
der the  authority  of  this  State,  or  of  the  United  States. 

SEC.  III.  A  Court  of  Probate  shall  be  established  in  each  of  the  organized 
counties. 

SEC.  IV.  Judges  of  all  County  Courts,  Associate  Judges  of  Circuit  Courts,  and 
Judges  of  Probate  shall  be  elected  by  the  qualified  electors  of  the  county  in  which 
they  reside,  and  shall  hold  their  office  for  four  years. 

SEC.  V.  The  Supreme  Court  shall  appoint  their  Clerk  or  Clerks  ;  and  the  electors 
of  each  county  shall  elect  a  Clerk,  to  be  denominated  a  County  Clerk,  who  shall  hold 
his  office  for  the  term  of  two  years,  and  shall  perform  the  duties  of  Clerk  to  all  the 
Courts  of  Record  to  be  held  in  each  county,  except  the  Supreme  Court  and  Court 
of  Probate. 

SEC.  VL  Each  township  may  elect  four  Justices  of  the  Peace,  who  shall  hold 
their  offices  for  four  years  ;  and  whose  powers  and  duties  shall  be  defined  and  regu- 
lated by  law.  At  their  first  election  they  shall  be  classed  and  divided  by  lot  into 
numbers  one,  two,  three,  and  four,  to  be  determined  in  such  manner  as  shall  be  pre- 
scribed by  law,  so  that  one  Justice  shall  be  annually  elected  in  each  township  there- 
after. A  removal  of  any  Justice  from  the  township  in  which  he  was  elected  shall 
vacate  his  office.  In  all  incorporated  towns,  or  cities,  it  shall  be  competent  for  the 
Legislature  to  increase  the  number  of  Justices. 

Sac.  VII.  The  style  of  all  process  shall  be  "In  the  name  of  the  People  of  the 
State  of  Michigan ;"  and  all  indictments  shall  conclude  "  against  the  peace  and  dig- 
nity of  the  same." 

ARTICLE  VII. 

SECTION  I*  There  shall  be  a  Secretary  of  State,  who  shall  hold  his  office  for  two 
years,  and  who  shall  be  appointed  by  the  Governor,  by  and  with  the  advice  and  con- 
sent of  the  Senate.  He  shall  keep  a  fair  record  of  the  official  acts  of  the  Legisla- 
tive and  executive  departments  of  the  government ;  and  shall,  when  required,  lay 
the  same,  and  all  matters  relative  thereto,  before  either  branch  of  the  Legislature  ; 
and  shall  perform  such  other  duties  as  shall  be  assigned  him  by  law. 

SEC.  II.  A  State  Treasurer  shall  be  appointed  by  a  joint  vote  of  the  two  houses 
of  the  Legislature,  and  shall  hold  his  office  for  the  term  of  two  years. 

SEC.  III.  There  shall  be  an  Auditor  General  and  an  Attorney  General  for  the 
State,  and  a  Prosecuting  Attorney  for  each  of  the  respective  counties,  who  shall  hold 
their  offices  for  two  years,  and  who  shall  be  appointed  by  the  Governor,  by  and  with 
the  advice  and  consent  of  the  Senate,  and  whose  powers  and  duties  shall  be  pre- 
scribed by  law. 

SEC.  IV.  There  shall  be  a  Sheriff,  a  County  Treasurer,  and  one  or  more  Coroners, 
a  Register  of  Deeds,  and  a  County  Surveyor,  chosen  by  the  electors  in  each  of  the 


MICHIGAN.  449 

several  counties  once  in  every  two  years,  and  as  often  as  vacancies  shall  happen.  The 
Sheriff  shall  hold  no  other  office,  and  shall  not  be  capable  of  holding  the  office  of 
Sheriff  longer  than  four  in  any  term  of  six  years ;  he  may  he  required  by  law  to  re- 
new his  security  from  time  to  time,  and  in  default  of  giving  such  security,  his  office 
shall  be  deemed  vacant ;  but  the  county  shall  never  be  made  responiible  for  the  acts 
of  the  Sheriff. 

ARTICLE  VIII. 

SECTION  I.  The  House  of  Representatives  shall  have  the  sole  power  of  impeach- 
ing all  civil  officers  of  the  State,  for  corrupt  conduct  in  office,  or  for  crimes  and  mis- 
demeanors ;  but  a  majority  of  all  the  members  elected  shall  be  necessary  to  direct 
an  impeac  hmeut. 

SEC.  II.  All  impeachments  shall  be  tried  by  the  Senate.  When  the  Governor  or 
Lieutenant  Governor  shall  be  tried,  the  Chief  Justice  of  the  Supreme  Court  shall 
preside.  Before  the  trial  of  an  impeachment,  the  members  of  the  court  shall  take 
an  oath  or  affirmation  truly  and  impartially  to  try  and  determine  the  charge  in  ques- 
tion according  to  the  evidence ;  and  no  person  shall  be  convicted  without  the  con- 
currence of  two-thirds  of  the  members  present.  Judgment,  in  cases  of  impeach- 
ment, shall  not  extend  further  than  to  removal  from  office ;  but  the  party  convicted 
shall  be  liable  to  indictment  and  punishment  according  to  law. 

SEC.  III.  For  any  reasonable  cause,  which  shall  not  be  sufficient  ground  for  the 
impeachment  of  the  Judges  of  any  of  the  courts,  the  Governor  shall  remove  any  of 
them  on  the  address  of  two-thirds  of  each  branch  of  the  Legislature  ;  but  the  cause 
or  causes  for  which  such  removal  may  be  required  shall  be  stated  at  length  in  tho 
address. 

SEC.  IV.  The  Legislature  shall  provide  bylaw  for  the  removal  of  Justices  of  the 
Peace,  and  other  county  and  township  officers,  in  such  manner  and  for  euch  cause 
as  to  them  shall  seem  just  and  proper. 

ARTICLE  IX. 

SECTION  I.  The  Legislature  shall  provide  by  law  for  organizing  and  disciplining 
the  militia,  in  such  manner  as  they  shall  deem  expedient,  not  incompatible  with  the 
Constitution  and  laws  of  the  United  States. 

SEC.  II.  The  Legislature  shall  provide  for  the  efficient  discipline  of  the  officers, 
commissioned  and  non-commissioned,  and  musicians,  and  may  provide  by  law  for 
the  organization  and  discipline  of  volunteer  companies. 

SEC.  III.  Officers  of  the  militia  shall  be  elected  or  appointed  in  such  manner  as 
the  Legislature  shall  from  time  to  time  direct,  and  shall  be  commissioned  by  the 
Governor. 

SEC.  IV.  The  Governor  shall  have  power  to  call  forth  the  militia,  to  execute  the 
laws  of  the  State,  to  suppress  insurrections,  and  repel  invasions. 

20* 


450  CONSTITUTION  OF 

ARTICLE  X. 

SECTION  I.  The  Governor  shall  nominate,  and  by  and  with  the  advice  and  con- 
Bent  of  the  Legislature  in  joint  vote,  shall  appoint  a  Superintendent  of  Public  In- 
struction, who  shall  hold  his  office  for  two  years,  and  whose  duties  shall  be  pre- 
scribed by  law. 

SEC.  II.  The  Legislature  shall  encourage,  by  nil  suitable  means,  the  promotion 
of  intellectual,  scientifical  and  agricultural  improvements.  The  proceeds  of  all  lands 
that  have  been  or  hereafter  may  be  granted  by  the  United  States  to  this  State,  for 
the  support  of  schools,  which  shall  hereafter  be  sold  or  disposed  of,  shall  be  and  re- 
main a  perpetual  fund  ;  the  interest  of  which,  together  with  the  rents  of  all  such 
unsold  lands,  shall  he  inviolably  appropriated  to  the  support  of  schools  throughout 
the  State. 

SEC.  III.  The  Legislature  shall  provide  for  a  system  of  common  schools,  by 
which  a  school  shall  be  kept  up  and  supported  in  each  school  district,  at  least  three 
months  in  every  year;  and  any  school  district  neglecting  to  keep  up  and  suppoit 
«uch  a  school,  may  be  deprived  of  its  equal  proportion  of  the  interest  of  the  public 
fund. 

SEC.  IV.  As  soon  as  the  circumstances  of  the  State  will  permit,  the  Legislature 
shall  provide  for  the  establishment  of  libraries ;  one  at  least  in  each  township;  and 
the  money  which  shall  be  paid  by  persons  as  an  equivalent  for  exemption  from  mil- 
itary duty,  and  the  clear  proceeds  of  all  fines  assessed  in  the  several  counties  for  any 
breach  of  the  penal  laws,  shall  be  exclusively  applied  to  the  support  of  said  libra* 
Ties. 

SEC.  V.  The  Legislature  shall  take  measures  for  the  protection,  improvement, 
or  other  disposition  of  such  lands  as  have  been  or  may  hereafter  be  reserved  or 
granted  by  the  United  States  to  this  State  for  the  support  of  a  university ;  and  the 
funds  accruing  from  the  rents  or  sale  of  such  lands,  or  from  any  other  source  for  the 
purpose  aforesaid,  shall  be  and  remain  a  permanent  fund  for  the  support  of  said 
university,  with  such  branches  as  the  public  convenience  may  hereafter  demand  for 
the  promotion  of  literature,  the  arts  and  sciences,  and  as  may  be  authorized  by  the 
terms  of  such  grant.  And  it  shall  be  the  duty  of  the  Legislature,  as  soon  as  may 
be,  to  provide  effectual  means  for  the  improvement  and  permanent  security  of 
the  funds  of  said  university. 

ARTICLE  XL 

SECTION  I.  Neither  slavery  nor  involuntary  servitude  shall  ever  be  introduced 
into  this  Stat«,  except  for  the  punishment  of  crimes  of  which  the  party  shall  have 
been  duly  convicted. 

ARTICLE  XII. 

SECTIOX  I.  Members  of  the  Legislature,  and  all  officer?,  executive  and  judicial 
except  such  inferior  officers  as  may  by  law  be  exempted,  shall,  before  they  enter  on 


MICHIGAN.  451 

% 

the  duties  of  their  respective  offices,  take  and  subscribe  the  following  oath  or  affir- 
mation :  "  I  do  solemnly  swear,  or  affim,  (as  the  case  may  be,)  that  I  will  support 
the  Constitution  of  the  United  States,  and  the  Constitution  of  this  State,  and  that 
I  will  faithfully  discharge  the  duties  of  the  office  of 

according  to  the  best  of  my  ability."  And  no  other  oath,  declaration,  or  test,  shall 
be  required  as  a  qualification  for  any  office  or  public  trust. 

SEC.  II.  The  Legislature  shall  pass  no  act  of  incorporation,  unless  with  the  as- 
sent of  at  least  two-thirds  of  each  house. 

SEC.  III.  Internal  improvement  shall  be  encouraged  by  the  government  of  this 
State  ;  and  it  shall  be  the  duty  of  the  Legislature,  as  soon  as  may  be,  to  make  pro- 
vision by  law  for  ascertaining  the  proper  objects  of  improvement  in  relation  to 
roads,  canals,  and  navigable  waters ;  and  it  shall  also  be  their  duty  to  provide  by 
law  for  an  equal,  systematic,  and  economical  application  of  the  funds  which  may 
be  appropriated  to  these  objects. 

SEC.  IV.  No  money  shall  be  drawn  from  the  treasury  but  in  consequence  of  ap- 
propriations made  by  law ;  and  an  accurate  statement  of  the  receipts  and  expen- 
ditures of  the  public  moneys  shall  be  attached  to,  and  published  with,  the  laws  an- 
nually. 

SEC.  V.  Divorces  shall  not  be  granted  by  the  Legisl»ture ;  but  the  Legislature 
may  by  law  authorize  the  higher  courts  to  grant  them,  under  such  restrictions  as 
they  may  deem  expedient. 

Ssc.  VI.  No  lottery  shall  be  authorized  by  this  State,  nor  shall  the  sale  of  lot- 
tery tickets  be  allowed. 

SEC.  VII.  No  county  now  organized  by  law  shall  ever  be  reduced,  by  the  organi- 
zation of  new  counties,  to  less  than  four  hundred  square  miles. 

SEC.  V11I.  The  Governor,  Secretary  of  State,  Treasurer,  and  Auditor  General, 
shall  keep  their  offices  at  the  seat  of  Government. 

SEC.  IX.  ^he  seat  of  government  for  this  State  shall  be  at  Detroit,  or  at  such 
other  place  or  places  as  may  be  prescribed  by  law,  until  the  year  eighteen  hundred 
and  forty-seven,  whe.i  it  shall  be  permanently  located  by  the  Legislature. 

SEC.  X.  The  first  Governor  and  Lieutenant  Governor  shall  hold  their  offices  un- 
til the  first  Monday  of  January  eighteen  hundred  and  thirty-eight,  and  until  others 
shall  be  elected  and  qualified  ;  and  thereafter,  they  shall  hold  their  offices  for  two 
years,  and  until  their  successors  shall  be  elected  and  qualified. 

SEC.  XI.  When  a  vacancy  shall  happen,  occasioned  by  the  death,  resignation, 
or  removal  from  office  of  any  person  holding  office  under  this  State,  the  successor 
thereto  shall  hold  his  office  for  the  period  for  which  his  predecessor  had  to  serve, 
and  no  longer,  unless  again  chosen  or  re-appointed. 

ARTICLE  XIII. 

Section  1.  Any  amendment  or  amendments,  to  this  Constitution  may  be  pro- 
posed in  the  Senate  or  House  of  Representatives  :  and  if  the  same  shall  be  agreed 
to  by  a  majority  of  the  members  elected  to  each  of  the  two  houses,  such  proposed 


452  CONSTITUTION  OF  MICHIGAN. 

amendment  or  amendments  shall  be  entered  on  their  journals,  with  the  ayes  and 
nays  taken  thereon,  and  referred  to  the  Legislature  then  next  to  be  chosen ;  and 
shall  be  published  for  three  months  previous  to  the  time  of  making  such  choice. 
And  if  in  the  Legislature  next  chosen  as  aforesaid,  such  proposed  amendment  or 
amendments  shall  be  agreed  to  by  two-thirds  of  all  the  members  elected  to  each 
house,  then  it  shall  be  the  duty  of  the  Legislature  to  submit  such  proposed  amend- 
ment or  amendments  to  the  people,  in  such  manner  and  at  such  time  as  the  Legis- 
lature shall  prescribe ;  and  if  the  people  shall  approve  and  ratify  such  amendment 
or  amendments,  by  a  majority  of  the  electors  qualified  to  vote  for  members  of  the 
Legislature,  voting  thereon,  such  amendment  or  amendments  shall  become  part  of 
the  Constitution. 

SEC.  II.  And  if  at  any  time  two-thirds  of  the  Senate  and  House  of  Representa- 
tives shall  think  it  necessary  to  revise  or  change  this  entire  Constitution,  they  shall 
recommend  to  the  electors,  at  the  next  election  for  members  of  the  Legislature,  to 
vote  for  or  against  a  Convention ;  and  if  it  shall  appear  that  a  majority  of  the  elec- 
tors voting  at  such  election  have  voted  in  favor  of  calling  a  Convention,  the  Legisla- 
ture shall  at  its  next  session  provide  by  law  for  calling  a  Convention  to  be  holden 
within  six  months  after  the  passage  of  such  a  law :  and  such  Convention  shall  con- 
sist of  a  number  of  members  not  less  than  that  of  both  branches  of  the  Legislature. 


STATE  OF  IOWA.  453 


CONSTITUTION 


THE    STATE    OF   IOWA. 


ARTICLE  I. 

WE,  THK  PEOPLE  of  the  Territory  of  Iowa,  grateful  to  the  Supreme  Being  for  the 
blessings  hitherto  enjoyed,  and  feeling  our  dependence  on  Him  for  a  continuance 
of  those  blessings,  do  ordain  and  establish  a  free  and  independent  government,  by 
the  name  of  the  State  of  Iowa,  the  boundaries  whereof  s^all  be  as  follows  : 

Beginning  in  the  middle  of  the  main  channel  of  the  Mississippi  river,  at  a  point 
due  east  of  the  middle  of  the  mouth  of  tho  main  channel  of  the  Dos  Moines  river, 
thence  up  the  middle  of  the  main  channel  of  the  §aid  DCS  Moines  riter,  to  a  point  on 
said  river  where  the  northern  boundary  line  of  the  State  of  Missouri,  as  established 
by  the  Constitution  of  that  State,  adopted  June  12,  1820,  crosses  the  said  middle  of 
the  main  channel  of  the  said  Dos  Moines  river ;  thence  westwardly,  along  the  said 
northern  boundary  line  of  the  State  of  Missouri,  as  established  at  the  time  aforer 
said,  until  an  extension  of  said  line  intersects  the  middle  of  the  main  channel  of  the 
Missouri  river ;  thence  up  the  middle  of  the  main  channel  of  the  said  Missouri 
river,  to  a  point  opposite  the  middle  of  tho  main  channel  of  the  Big  Sioux  river, 
according  to  Nicollett's  map  ;  thence  up  the  main  channel  of  the  said  Big  Sioux 
river,  according  to  said  map,  until  it  is  intersected  by  the  parallel  of  forty-three 
degrees  and  thirty  minutes  north  latitude  ;  thence  east,  along  said  parallel  of  forty- 
three  degrees  and  thirty  minutes,  until  said  parallel  intersects  the  middle  of  tho 
main  channel  of  the  Mississippi  river ;  thence  down  the  middle  of  the  main  chan- 
nel of  said  Mississippi  river,  to  the  place  of  beginning. 

ARTICLE  II. 

SECTION  I.  All  men  are  by  nature  free  and  independent,  and  have  certain  unal- 
ienable  rights,  among  which  are  those  of  enjoying  and  defending  life  and  liberty, 
acquiring,  possessing  and  protecting  property,  and  pursuing  and  obtaining  safety 
and  happinesi. 


454  CONSTITUTION  OF 

SEC.  II.  All  political  power  is  inherent  in  the  people.  Government  is  insti- 
tuted for  the  protection,  security  and  benefit  of  the  people  ;  and  they  have  the  right 
at  all  times,  to  alter  or  reform  the  same,  whenever  the  public  good  may  require  it. 

SBC.  III.  The  General  Assembly  shall  make  no  law  respecting  an  establish- 
msnt  of  religion,  or  prohibiting  the  free  exercise  thereof,  nor  shall  any  person  be 
compelled  to  attend  any  plase  of  worship,  pay  tithes,  taxes,  or  other  rates,  for 
buildiag  or  repairing  places  of  worship,  or  for  the  maintenance  of  any  minister  or 
ministry. 

SEC.  IV.  No  religious  test  shall  be  required  as  a  qualification  for  any  office  or 
public  trust,  and  no  person  shall  be  deprived  of  any  of  his  rights,  privileges  or 
capacities,  or  disqualified  from  the  perf.>rmance  of  any  of  his  public  or  private 
duties,  or  rendared  incompetent  to  give  evid  ^nce  in  any  court  of  law  or  equity,  in 
consequence  of  his  opinions  on  the  subject  of  religion. 

SES.  V.  Any  citizen  of  this  State  whs  may  hereafter  be  engaged,  either  directly 
or  indirectly,  in  a  duel,  either  as  principal  or  accessory,  before  the  fact,  shall  forev- 
er be  disqualified  from  holding  any  office  under  the  Constitution  and  laws  of  this 
State. 

SEC.  VI.    All  laws  of  a  general  nature  shall  have  a  uniform  operation. 

SEC.  VII.  Every  person  may  speak,  write  and  publish  his  sentiments  on  all  sub- 
jects, being  responsible  for  the  abuse  of  that  right.  No  law  shall  be  passed  to  re- 
strain or  abridge  the  liberty  of  speech  or  of  the  press.  In  all  prosecutions  or  in- 
dictments for  libel,  the  truth  may  be  given  in  evidence  to  the  jury,  and  if  it  appear 
to  the  jury  that  the  matter  charged  as  libelous  was  true,  and  was  published  with 
good  motives,  and  for  justifiable  ends,  the  party  shall  be  acquitted. 

SKC.  VIII.  The  right  of  the  people  to  be  secure  in  their  persons,  houses,  pa- 
pers and  effects,  against  unreasonable  searches  and  seizures,  shall  not  be  violated  ; 
and  no  warrant  shall  issue  but  on  probable  cause,  supported  by  oath  or  affirma- 
tion, particularly  describing  the  place  to  be  searched,  and  the  papers  and  things  to 
be  seized. 

Sac.  IX.  The  right  of  trial  by  jury  shall  remain  inviolate,  but  the  General  As- 
sembly may  authorize  trial  by  a  jury  of  a  less  number  than  twelve  men,  in  inferior 
courts. 

SEC.  X.  In  all  criminal  prosecutions,  the  accused  shall  have  a  right  to  a  speedy 
trial  by  an  impartial  jury,  to  be  informed  of  the  accusation  against  him,  to  be  con- 
fronted with  the  witnesses  against  him,  to  have  compulsory  process  for  his  own 
witnesses,  and  to  have  the  assistance  of  counsel. 

SEC.  XL  No  person  shall  be  held  to  answer  for  a  criminal  offence,  unless  on 
presentment,  or  indictment  by  a  Grand  Jury,  except  in  cases  cognizable  by  Justices 
of  the  Peace,  or  arising  in  the  army  or  navy,  or  in  the  militia,  when  in  actual  ser- 
rice  in  time  of  war  or  public  danger. 

SKC.  XII.  No  person  shall  after  acquittal  be  tried  for  the  same  offence.  All 
persons  shall,  before  conviction,  be  bailable  by  sufficient  suretib?,  except  for  capital 
offences,  where  the  proof  is  evident  or  the  presumption  great. 


IOWA.  455 

SEC.  XIII.  The  writ  of  habeas  corpus  shall  not  be  suspended,  unless,  in  case 
of  rebellion  or  invasion,  the  public  safety  require  it. 

SEC.  XIV.  The  military  shall  be  subordinate  to  the  civil  power.  No  standing 
army  shall  be  kept  up  by  the  State  in  time  of  peace,  and  in  time  of  war  no  appro- 
priation for  a  standing  army  shall  be  for  a  longer  time  than  two  years. 

SEC.  XV.  No  soldier  shall,  in  time  of  peace,  be  quartered  in  any  house,  with- 
out the  consent  of  the  owner;  nor  in  time  of  war,  except  in  the  manner  prescribed 
by  law. 

SEC.  XVI.  Treason  against  the  State  shall  consist  onlj  in  levying  war  against 
it,  adhering  to  its  enemies,  or  giving  them  aid  and  comfort.  No  person  shall  be 
convicted  of  treason,  unless  on  the  evidence  of  two  witnesses  to  the  same  overt  act, 
or  confession  in  open  court. 

SEC.  XVII.  Excessive  bail  shall  not  be  required,  excessive  fines  shall  not  be  im- 
posed, nor  cruel  and  unusual  punishments  indicted. 

SEC.  XVIII.  Private  property  shall  not  be  taken  for  public  use  without  just 
compensation. 

SEC.  XIX.  No  person  slnll  be  imprisoned  for  debt  in  any  civil  action  on  mcsne 
or  final  process,  unless  in  cases  of  fraud ;  and  no  person  shall  be  imprisoned  for  a 
militia  fine  in  time  of  peace. 

SEC.  XX.  The  people  have  the  right  freely  to  assemble  together  to  consult  for 
the  common  good,  to  make  known  their  opinions  to  their  Representatives,  and  to 
petition  for  redress  of  gritVMOMi 

SEC.  XXI.  No  bill  of  attainder,  ex  post  facto  law,  or  law  impairing  the  obliga- 
tion of  contracts,  shall  ever  be  passed. 

SEC.  XXII.  Foreigners  who  are,  or  who  may  hereafter  Income  residents  of  this 
State,  shall  enjoy  the  same  rights,  in  respect  to  the  possession,  enjoyment,  and  de- 
scent of  property,  as  native  born  citizens. 

SEC.  XXIII.  Neither  slavery  nor  involuntary  servitude,  unless  for  the  puniihment 
of  crimes,  shall  ever  be  tolerated  in  this  State. 

SEC.  XXIV.  This  enumeration  of  rights  shall  not  be  construed  to  impair  or  deny 
others,  retained  by  the  people. 

ARTICLE  III. 

SECTION  I.  Every  white  male  citizen  of  the  United  States,  of  the  age  of  twenty- 
one  years,  who  shall  have  been  a  resident  of  the  State  six  months  next  preceding 
the  election,  and  the  county  in  which  he  claims  his  vote  twenty  days,  shall  be  en- 
titled to  vote  at  all  elections  which  are  now  or  hereafter  may  be  authorized  by  law. 

SEC.  II.  Electors  shall,  in  all  cases  except  treason,  felony,  or  breach  of  the 
peace,  be  privileged  from  arrest  oa  the  days  of  election,  during  their  attendance  at 
such  election,  going  to,  and  returning  therefrom. 

SEC.  III.  No  elector  shall  be  obliged  to  perform  militia  duty  on  the  day  of 
election,  except  in  time  of  war,  or  public  danger. 

SBC.  IV.   No  person  in  the  military,  naval  or  marine  service  of  the  United  States, 


456  CONSTITUTION  OF 

shall  be  considered  a  resident  of  this  State  by  being  stationed  in  any  garrison,  bar- 
rack, or  military  or  naval  place  or  station  within  this  State. 

SEC.  V.  No  idiot  or  insane  person,  or  persons  convicted  of  any  infamous  crime, 
shall  be  entitled  to  the  privileges  of  an  elector. 

Sac.  VI.    All  elections  by  the  people  shall  be  by  ballot. 

- 

ARTICLE  IV. 

The  powers  of  the  government  of  Iowa  shall  be  divided  into  three  separate 
departments,  the  Legislative,  the  Executive,  and  Judicial ;  and  no  person  charged 
with  the  exercise  of  powers  properly  belonging  to  one  of  these  departments,  shall 
exercise  any  function  appertaining  to  either  of  the  others,  except  in  the  cases  here- 
inafter expressly  directed  or  permitted. 

SECTION  I.  The  legislative  authority  of  this  State  shall  bo  vested  in  a  Senate 
and  House  of  Representatives,  which  shall  be  designated  the  General  Assembly  of 
the  State  of  Iowa,  and  the  style  of  their  laws  shall  commence  in  the  following 
manner:  "  Be  it  enacted  by  the  General  Assembly  of  the  State  of  Iowa." 

SEC.  II.  The  sessions  of  the  General  Assembly  shall  be  biennial,  and  shall  com- 
mence on  the  first  Monday  of  December  next  ensuing  the  election  of  its  members  ; 
unless  the  Governor  of  the  State  shall,  in  the  interim,  convene  the  General  Assem- 
bly by  proclamation. 

SEC.  III.  The  members  of  the  House  of  Representatives  shall  be  chos"en  every 
second  year,  by  the  qualified  electors  of  their  respective  districts,  on  the  first  Mon- 
day in  August,  whose  term  of  office  shall  continue  two  years  from  the  day  of  the 
general  election. 

Sic.  IV.  No  person  shall  be  a  member  of  the  House  of  Representatives  who 
shall  not  have  attained  the  age  of  twenty-one  years;  be  a  free  white  male  citizen 
of  the  United  States,  and  have  been  an  inhabitant  of  this  State  or  territory  one 
year  next  preceding  his  election ;  and  at  the  time  of  his  election,  have  an  actual 
residence  of  thirty  days  in  the  county  or  district  he  may  be  chosen  to  represent. 

SEC.  V.  Senators  shall  be  chosen  for  the  term  of  four  years,  at  the  same  time 
and  place  as  Representatives,  they  shall  be  twenty-five  years  of  age,  and  posse'ss 
the  qualifications  of  Representatives,  as  to  residence  and  citizenship. 

SEC.  VI.  The  number  of  Senators  shall  not  be  less  than  one-third  nor  more  than 
one-half  the  representative  body,  and  at  the  first  session  of  the  General  Assembly 
after  this  Constitution  takes  effect,  the  Senators  shall  be  divided  by  lot,  as  equally 
as  may  be,  into  two  classes ;  the  seats  of  the  Senators  of  the  first  class  shall  be  va- 
cated at  the  expiration  of  the  second  year,  so  that  one-half  shall  be  chosen  every 
two  years. 

SEC.  VII.  When  the  number  of  Senators  is  increased,  they  shall  be  annexed  by 
lot  to  one  of  the  two  classes,  go  as  to  keep  them  as  nearly  equal  in  number  as  prac- 
ticable. 

SBC.  VIII.    Each  House  shall  choose  its  own  officers  and  judge  of  the  qualifica- 


IOWA.  457 

tion,  election  and  return  of  its  own  members.     A  contested  election  shall  be  de- 
termined in  such  manner  as  shall  be  directed  by  law. 

SEC.  IX.  A  majority  of  each  House  shall  constitute  a  quorum  to  do  business, 
but  a  smaller  number  may  adjourn  from  day  to  day,  and  may  compel  the  attendance 
of  absent  members  in  such  manner  and  under  such  penalties  as  each  House  may 
provide. 

SEC.  X.  Each  House  shall  sit  upon  its  own  adjournments;  keep  a  journal  of  its 
proceedings,  and  publish  the  same;  determine  its  rules  of  proceedings ;  punish 
members  for  disorderly  behavior,  and  with  the  consent  of  two-thirds,  expel  a  mem- 
ber, but  not  a  second  time  for  the  same  offence  ;  and  shall  have  all  other  powers 
necessary  for  a  branch  of  the  General  Assembly  of  a  free  and  independent  State. 

SEC.  XI.  Every  member  of  the  General  Assembly  shall  have  the  liberty  to  dis- 
sent from  or  protest  against  anv  art  or  resolution  whirh  hi;  may  think  injurious  to 
the  public  or  an  individual,  and  have  the  reasons  for  his  dissent  entered  on  the 
journals ;  and  the  yeas  and  nays  of  the  members  of  either  House,  on  any  question, 
shall,  at  the  desire  of  any  two  members  present,  be  entered  on  the  journals. 

SEC.  XLI.  Senators  and  Repreeettfetfrec,  in  all  cases  except  treason,  felony,  or 
breach  of  the  peace,  shall  be  privileged  from  arrest  during  the  session  of  the  Gen- 
eral Assembly,  and  in  going  to  and  returning  from  the  same. 

SEC.  XIII.  When  vacancies  occur  in  either  House,  the  Governor,  or  the  person 
exercising  the  functions  of  the  Governor,  shall  issue  writs  of  election  to  fill  such 
vacancies. 

SEC.  XIV.  The  doors  of  each  House  shall  be  open,  except  on  such  occasions  as, 
in  the  opinion  of  the  House,  may  require  secrecy. 

SEC.  XV.  Neither  House  shall,  without  the  consent  of  the  other,  tWjourn  for 
more  than  three  days,  nor  to  any  other  place  than  that  in  which  they  maybe  sitting. 
SEC.  XVI.  Bills  may  originate  in  either  House,  except  bills  for  revenue,  which 
shall  always  original e  in  the  House  of  Representatives,  and  may  be  amended,  al- 
tered, or  rejected  by  the  other,  and  every  bill  having  passed  both  Houses,  shall  be 
signed  by  the  Speaker  and  President  of  their  respective  Houses. 

SEC.  XVII.  Every  bill  which  shall  have  passed  the  General  Assembly  shall,  be- 
fore it  becomes  a  law,  be  presented  to  the  Governor.  If  he  approve,  he  shall  sign 
it,  but  if  not,  he  shall  return  it  with  his  objections,  to  the  House  in  which  it  origin- 
ated, and  shall  enter  the  same  upon  the  journal  and  proceed  to  reconsider  it;  if, 
ntter  such  reconsideration,  it  again  pass  both  Houses,  by  yeas  and  nays,  by  a  majority 
of  two-thirds  of  the  members  of  each  House  present,  it  shall  become  a  law,  not- 
withstanding the  Governor's  objections.  If  any  bill  shall  not  be  returned  within 
three  days  after  it.  shall  have  been  presented  to  him,  Sunday  excepted,  the  same 
shall  be  a  law  in  like  manner  as  if  he  had  signed  it,  unless  the  General  Assembly, 
by  adjournment,  prevent  such  return. 

SEC.  XVIII.  An  accurate  statement  of  the  receipts  and  expenditures  of  the 
public  money  shall  be  attached  to  and  published  with  the  laws,  at  every  regular 
session  of  the  General  Assembly. 

21 


458  CONSTITUTION  OF 

SKC.  XIX.  The  House  of  Representatives  shall  have  the  sole  power  of  impeach- 
ment, and  all  impeachments  shall  be  tried  by  the  Senate.  When  sitting  for  that 
purpose,  the  Senators  shall  lie  upon  rath  or  affirmation  ;  ar;cl  no  person  shall  be 
convicted  without  the  concurrence  of  two-thirds*  of  the  members  present. 

SEC.  XX.  The  Governor,  Secretary  of  State,  Auditor,  Treasurer,  and  Judges  of 
the  Supreme  and  District  Court?,  shall  be  liable  to  impeachment  for  any  misde- 
meanor in  office:  but  judgment  in  such  cases  shall  extend  only  to  removal  from 
office,  and  disqualification  to  hold  any  office  of  honor,  trust  or  profit  under  this  State; 
but  the  party  convicted  or  acquitted  shall  nevertheless  be  liable  to  ii.dictmcnt,  trial 
and  punishment,  according  to  law.  All  other  civil  officers  shall  be  tried  for  mis- 
demeanors in  office,  in  such  manner  as  the  General  Assembly  may  provide. 

SEC.  XXI.  No  Senator  or  Representative  shall,  during  the  time  for  which  he 
shall  have  been  elected,  be  appointed  to  any  civil  office  of  profit  under  this  State, 
which  shall  have  been  created,  or  the  emoluments  of  which  shall  have  been  in- 
creased during  such  term,  except  such  offices  as  may  be  filled  by  elections  by  the 
people. 

SEC.  XXII.  No  person  holding  any  lucrative  office  under  the  United  States,  or 
this  State,  or  any  other  power,  shall  be  eligible  to  the  General  Assembly :  provided, 
that  officers  in  the  militia,  to  which  there  is  attached  no  a)inual  salary,  or  the 
office  of  Justice  of  the  Peace,  or  Postmasters  whose  compensation  does  not  exceed 
one  hundred  dollars  per  annum,  shall  not  be  deemed  lucrative. 

SEC.  XXlll.  No  person  who  may  hereafter  be  a  Collector  or  holder  of  public 
moneys,  shall  have  a  seat  in  either  House  of  the  General  Assembly,  or  be  eligible 
to  any  office  of  trast  or  profit  under  this  State,  until  he  shall  have  accounted  for 
and  paid  into  the  treasury,  all  sums  for  which  he  may  be  liable. 

SEC.  XXiV.  No  money  shall  be  drawn  from  the  treasury  but  in  consequence 
of  appropriations  made  by  law. 

SEC.  XXV.  Each  member  of  the  General  Assembly  shall  receive  a  compensa- 
tion, to  be  fixed  by  law,  for  his  services,  to  be  paid  out  of  the  treasury  of  the  State. 
Such  compensation  shall  not  exceed  two  dollars  per  day  for  the  period  of  fifty 
days  from  the  commencement  of  the  session,  and  shall  not  exceed  the  sum  of  one 
dollar  per  day  for  the  remainder  of  the  session  :  when  convened  in  extra  session 
by  the  Governor,  they  shall  receive  such  sum  as  shall  be  fixed  for  the  first  fifty  days 
of  the  ordinary  session.  They  shall  also  receive  two  dollars  for  every  twenty 
miles  they  shall  travel,  in  going  to  and  returning  from  their  place  of  meeting,  on 
the  most  usual  route:  provided,  however,  that  the  members  of  the  first  General 
Assembly  under  this  Constitution  shall  receive  two  dollars  per  day  for  their  ser- 
vices during  the  entire  session. 

SEC.  XXVI.  Every  law  shall  embrace  but  one  object,  which  shall  be  expressed 
in  the  title. 

SEC.  XXVII.  No  law  of  the  General  Assembly,  of  a  public  nature,  shall  take 
effect  until  the  same  shall  be  published  and  circulated  in  the  several  counties  of 
this  State,  by  authority.  If  the  General  Assembly  shall  deem  any  law  of  inm.e- 


IOWA.  459 

diate  importance,  they  may  provide  that  the  same  shall  take  effect  by  publication 
in  newspapers  in  the  State. 

SEC.  XXVIII.    No  divorce  shall  be  granted  by  the  General  Assembly. 
SKC.  XXIX.    No  lottery  shall  be  authorized  by  this  State,  nor  shall  the  sale  of 
lottery  tickets  be  allowed. 

SEC.  XXX.  Members  of  the  General  Assembly  shall,  before  they  enter  upon 
the  duties  of  their  respective  offices,  take  and  subscribe  the  following  oath  or 
affirmation :  I  do  solemnly  swear,  or  affirm,  (as  the  case  may  be,)  that  I  will 
support  the  Constitution  of  the  United  States,  and  the  Constitution  of  the  Slate 
of  Iowa,  and  that  I  will  faithfully  discharge  the  duties  of  Senator,  (or  Representa- 
tive,  as  the  case  may  be,)  according  to  the  best  of  my  ability.  And  members  of 
the  General  Assembly  are  hen -by  empowered  to  administer  to  each  other  the  said 
oath  or  affirmation. 

SEC.  XXXI.  Within  one  yenr  after  the  ratification  of  this  Constitution,  and 
within  every  subsequent  term  nf  two  years,  for  the  term  of  eight  years,  an  enumera- 
tion of  all  the  white  inhabitants  of  this  State  shall  be  made,  in  such  manner  as 
shall  be  directed  by  law.  The  number  of  Senators  and  Representatives  shall,  at 
the  first  regular  session  of  the  General  Assembly  after  such  enumeration,  be  fixed 
by  law,  and  apportioned  among  the  several  counties  according  to  the  number  of 
white  inhabitants  in  each,  and  shall,  also,  at  every  subsequent  regular  session,  ap- 
portion the  House  of  Representatives,  nnd  every  other  regular  session  the  Senate 
fir  ek'ht  venrs;  and  the  House  of  Representatives  shall  never  be  less  than  twenty- 
six,  nor  greater  than  thirty-nine,  until  the  number  of  white  inhabitants  shall  be  one 
hundred  and  seventy-five  thousand;  and  after  that  event,  at  such  ratio  that  the 
whole  number  of  Representatives  shall  never  l>e  less  than  thirty-nine,  nor  exceeding 

-two. 

SEC.   XXXII.    When  a  f  !.    Senatorial,    or    Representative  district 

shall  be  composed  of  two  or  more  counties,  it  shall  not  be  entirely  separated  by  any 
county  belonging  to  another  district;  and  no  comity  shall  be  divided  in  forming  a 
Congressional,  Senatorial  or  Representative  district. 

SEC.  XXXIII.  In  all  elections  by  the  General  Assembly,  the  members  thereof 
shall  vote  viva  voce,  and  the  votes  shall  be  entered  on  the  journal. 

SKC.  XXXIV.  For  the  first  ten  years  after  the  organization  of  the  government, 
the  annual  salary  of  the  Governor  shall  not  exceed  one  thousand  dollars  ;  Secretary 
of  State,  five  hundred  dollars ;  Treasurer,  four  hundred  dollars ;  Auditor,  six  hun- 
dred dollars ;  Judges  of  the  Supreme  and  District  Courts,  each  one  thousand 
dollars. 

ARTICLE  V. 

SECTION  I.  The  Supreme  Executive  Power  of  this  State  shall  be  vested  in  a 
Chief  Magistrate,  who  shall  be  styled  the  Governor  of  the  State  of  Iowa. 

SEC.  II.  The  Governor  shall  be  elected  by  the  qualified  electors,  at  the  time 
and  place  of  voting  for  members  of  the  General  Assembly,  and  shall  hold  his  office 


460  CONSTITUTION  OF 

four   years   from  the  time  of  his  installation,   and  until   his  successor   shall  be 
qualified. 

SEC.  III.  No  person  shall  be  eligible  to  the  office  of  Governor,  who  has  not  been 
a  citizen  of  the  United  States,  and  a  resident  of  the  State  two  years  next  preceding 
the  election,  and  attained  the  age  of  thirty  years  at  the  time  of  said  election. 

SEC.  IV.  The  returns  of  every  election  for  Governor  shall  be  sealed  up  and 
transmitted  to  the  seat  of  government,  directed  to  the  Speaker  of  the  House  of 
Representatives,  who  shall,  during  the  first  week  of  the  session,  open  and  publish 
them  in  the  presence  of  both  Houses  of  the  General  Assembly.  The  person  hav- 
ing the  highest  number  of  votes  shall  be  Governor;  but  in  case  any  two  or  more 
have  an  equal  and  the  highest  number  of  votes,  the  General  Assembly  shall,  by 
joint  vote,  choose  one  of  said  persons  so  having  an  equal  and  the  highest  number 
of  votes,  for  Governor. 

SEC.  V.  The  Governor  shall  be  Commander-in-Chief  of  the  militia,  the  army 
and  navy  of  this  State. 

SEC.  VI.  He  shall  transact  all  executive  business  with  the  officers  of  govern- 
ment, civil  and  military,  and  may  require  information  in  writing  from  the  officers 
of  the  executive  department,  upon  any  subject  relating  to  the  duties  of  their  re- 
spective offices. 

SEC.  VII.    He  shall  see  that  the  laws  are  faithfully  executed. 

SEC.  V1I1.  When  any  office  shall  from  any  cause  become  vacant,  and  no  mode 
is  provided  by  the  Constitution  and  laws  for  filling  such  vacancy,  the  Governor  shall 
have  power  to  fill  such  vacancy,  by  granting  a  commission,  which  shall  expire  at 
the  end  of  the  next  session  of  the  General  Assembly,  or  at  the  next  election  by  the 
people. 

SEC.  IX.  He  may,  on  extraordinary  occasions,  convene  the  General  Assembly 
by  proclamation,  and  shall  state  to  both  Houses,  when  assembled,  the  purpose  for 
which  they  shall  have  been  convened. 

SEC.  X.  He  shall  communicate  by  message  to  the  General  Assembly,  at  every 
session,  the  condition  of  the  State,  and  recommend  such  matters  as  he  shall  d'eem 
expedient. 

SEC.  XI.  In  case  of  disagreement  between  the  two  Houses,  with  respect  to  the 
time  of  adjournment,  the  Governor  shall  have  power  to  adjourn  the  General  As- 
sembly to  such  time  as  he  may  think  proper,  provided  it  be  not  beyond  the  time 
fixed  for  the  meeting  of  the  next  General  Assembly. 

SEC.  XII.  No  person  shall,  while  holding  any  other  office  under  the  United 
States,  or  this  State,  execute  the  office  of  Governor,  except  as  hereinafter  expressly 
provided. 

SEC.  XIII.  The  Governor  shall  have  power  to  grant  reprieves  and  pardons,  and 
commute  punishments  after  conviction,  except  in  cases  of  impeachment. 

SEC.  XIV.  The  Governor  shall,  at  stated  times,  receive  for  his  services  a  com- 
pensation which  shall  neither  be  increased  nor  diminished  during  the  time  for 
which  he  shall  have  been  elected. 


IOWA.  461 

SEC.  XV.  There  shall  be  a  seal  of  this  State,  which  shall  be  kept  by  the  Gov- 
ernor, and  used  by  him  officially,  and  shall  be  called  the  Great  Seal  of  the  State  of 
Iowa. 

SKC.  XVI.  All  grants  and  commissions  shall  be  in  the  name  and  by  the  au- 
thority of  the  people  of  the  State  of  Iowa,  sealed  with  the  great  seal  of  this  State, 
signed  by  the  Governor,  and  countersigned  by  the  Secretary  of  State. 

SEC.  XVII.  A  Secretary  of  State,  Auditor  of  Public  Accounts,  and  Treasurer, 
shall  be  elected  by  the  qualified  electors,  who  shall  continue  in  office  two  years. 
The  Secretary  of  State  shall  keep  a  fair  register  of  all  the  official  acts  of  the  Gov- 
ernor, and  shall,  when  required,  lay  thn  same,  together  with  all  papers,  minutes, 
and  vouchers  relative  thereto,  before  either  branch  of  the  General  Assembly,  and 
shall  perform  such  other  duties  as  shall  be  assigned  him  by  law. 

SEC.  XVIII.  In  case  of  the  impeachment  of  the  Governor,  his  removal  from 
office,  death,  resignation,  or  absence  from  the  State,  the  powers  and  duties  of  the 
office  shall  devolve  upon  the  Secretary  of  State,  until  such  disability  shall  cease,  or 
the  vacancy  bo  filled. 

SEC.  XIX.  If,  during  the  vacancy  of  the  office  of  Governor,  the  Secretary  of 
State  shall  be  impeached,  displaced,  resign,  die,  or  be  absent  from  the  State,  the 
powers  and  duties  of  the  office  of  Governor  shall  devolve  upon  the  President  of 
the  Senate ;  and  should  a  vacancy  occur  by  impeachment,  death,  resignation,  or 
absence;  friim  UK;  State,  of  the  President  of  the  Senate,  the  Speaker  of  the  House 
of  Representatives  shall  act  as  Governor  till  the  vacancy  be  filed. 

ARTICLE  VI. 

SECTION  I.  The  judicial  power  shall  be  vested  in  a  Supreme  Court,  District 
Court?,  and  such  inferior  courts,  as  the  General  Assembly  may  from  time  to  time 
establish. 

SEC.  II.  The  Supreme  Court  shall  consist  of  a  Chief  Justice  and  two  Associ- 
ates, two  of  whom  shall  be  a  quorum  to  hold  court. 

.  SEC.  III.  The  Judges  of  the  Supreme  Court,  shall  be  elected  by  joint  vote  of 
both  branches  of  the  General  Assembly,  and  shall  hold  their  courts  at  such  time 
and  place  as  the  General  Assembly  may  direct,  and  hold  their  offices  for  six  years, 
and  until  their  successors  are  elected  and  qualified,  and  shall  be  ineligible  to  any 
other  office  during  the  term  for  which  they  may  be  elected.  The  Supreme  Court 
shall  have  appellate  jurisdiction  only  in  all  cases  in  chancery,  and  shall  constitute 
a  court  for  the  correction  of  errors  at  law,  under  such  restrictions  as  the  General 
Assembly  may  by  law  prescribe.  The  Supreme  Court  shall  have  power  to  issue 
nil  writs  and  process  necessaiy  to  do  justice  to  parties,  and  exercise  a  supervisory 
control  over  all  inferior  judicial  tribunals,  and  the  Judges  of  the  Supreme  Court 
shall  be  conservators  of  the  peace  throughout  the  State. 

SEC.  IV.  The  District  Court  shall  consist  of  a  Judge  who  shall  be  elected  by 
the  qualified  voters  of  the  district  in  which  he  resides,  at  the  township  election, 
and  hold  his  office  for  the  term  of  five  years,  and  until  his  successor  is  duly  elected, 


462  IOWA. 

and  qualified,  and  shall  be  ineligible  to  any  other  office  during  the  term  for  which 
he  may  be  elected.  The  District  Court  shall  be  a  court  of  law  and  equity ;  and 
have  jurisdiction  in  all  civil  and  criminal  matters  arising  in  their  respective  dis- 
tricts, in  such  manner  as  shall  be  prescribed  by  law.  The  Judges  of  the  District 
Courts  shall  be  conservators  of  the  peace  in  their  respective  districts.  The  first 
session  of  the  General  Assembly  shall  divide  the  State  into  four  districts,  which 
may  be  increased  as  the  exigencies  require. 

SEC.  V.  The  qualified  voters  of  each  county,  shall  at  the  general  election,  elect 
one  Prosecuting  Attorney  and  one  Clerk  of  the  District  Court,  who  shall  be  resi- 
dents therein,  and  who  shall  hold  their  several  offices  for  the  term  of  two  years  and 
until  their  successors  are  elected  and  qualified. 

SEC.  VI.  The  style  of  all  process  shall  be  "the  State  of  Iowa"  and  all  prose- 
cutions shall  be  conducted  in  the  name  and  by  the  authority  of  the  same. 

ARTICLE  VII. 

SECTION  I.  The  Militia  of  this  State  shall  be  composed  of  all  able  bodied 
white  male  citizens  between  the  ages  of  eighteen  and  forty-five  years,  except  such 
as  are  or  may  hereafter  be  exempt  by  the  laws  of  the  United  States  or  of  this  State, 
and  shall  be  armed,  equipped,  and  trained,  as  the  General  Assembly  may  provide 
by  law. 

SEC.  II.  No  person  or  persons  conscientiously  scrupulous  of  bearing  arms,  shall 
be  compelled  to  do  militia  duty  in  time  of  peace :  provided,  that  such  person  or 
persons  shall  pay  an  equivalent  for  such  exemption  in  the  same  manner  as  other 
citizens. 

SEC.  III.  All  commissioned  officers  of  the  militia,  (staff  officers  excepted,) 
shall  be  elected  by  the  persons  liable  to  perform  military  duty,  and  shall  be  com- 
missioned by  the  Governor. 

ARTICLE   VIII. 

SECTION  I.  The  General  Assembly  shall  not  in  any  manner  create  any  debt  or 
debts,  liability  or  liabilities,  which  shall  singly  or  in  the  aggregate,  with  any  pre- 
vious debts  or  liabilities,  exceed  the  sum  of  one  hundred  thousand  dollars,  except 
in  case  of  war,  to  repel  invasion,  or  suppress  insurrection,  unless  the  same  shall  be 
authorized  by  some  law  for  some  single  object,  or  work,  to  be  distinctly  specified 
therein,  which  law  shall  provide  ways  and  means,  exclusive  of  loans,  for  the  pay- 
ment of  the  interest  of  such  debt  or  liability  as  it  falls  due,  and  also  to  pay  and 
discharge  the  principal  of  such  debt  or  liability  within  twenty  years  from  the  time 
of  the  contracting  thereof,  and  shall  be?  iiTepealable  until  the  principal  and  the 
interest  thereon  shall  be  paid  and  discharged;  but  no  such  law  shall  take  effect 
until  at  a  general  election  it  shall  have  been  submitted  to  the  people,  and  have 
received  a  majority  of  all  the  votes  cast  for  and  against  it  at  such  election,  and  all 
money  raised  by  authority  of  such  law,  shall  be  applied  only  to  the  specific  object 
therein  stated,  or  to  the  payment  of  the  debt  thereby  created,  and  such  law  shall 


IOWA.  463 

be  published  in  at  least  one  newspaper  in  each  judicial  district,  if  one  is  pul  lished 
therein,  throughout  the  State,  for  three  months  preceding  the  election  at  which  it  is 
submitted  to  the  people. 

ARTICLE  IX. 

SECTION  I.  No  corporate  bo;ly  shall  hereafter  be  created,  renewed,  or  extended, 
with  the  privilege  of  making,  issuing,  or  putting  in  circulation,  any  bill,  check, 
tic'<et,  ciTtifiiMt^,  pr.)  n'n3  >ry  note,  or  other  paper,  or  the  paper  of  any  bank,  to 
circulate  as  mo.iey.  The  General  Assembly  of  this  State  shall  prohibit,  by  law, 
any  person  or  pc-rs  >n«,  association,  company  or  corporation,  from  exercising  the 
privilege-  of  banking,  or  creating  paper  to  circulate  a?  money. 

SEC.  II.  Corporations  shall  not  be  created  in  this  State  by  special  laws,  except 
for  political  or  m  inicipal  purposes,  but  the  General  Assembly  shall  provide,  by 
general  laws,  for  the  organization  of  all  other  corporations,  except  corporations 
with  bunking  privileges,  the  creation  of  which  is  prohibited.  The  stockholders 
shall  he  subject  to  such  liabilities  and  restrictions  as  shall  be  provided  by  law. 
The  Slate  shall  not  directly  or  indirectly,  become  a  stockholder  in  any  corporation. 
ARTICLE  X. 

SECTION  I.  The  G3neral  Assembly  shall  provide  for  the  election,  by  the  people, 
of  <i  Superintendent  of  Public  instruction,  who  shall  hold  his  office  for  three  years, 
and  whose  duties  shall  be  prescribed  by  law,  and  shall  receive  such  compensation 
as  the  General  Assembly  may  direct. 

SEC.  II.  The  General  Assembly  shall  encourage,  by  all  suitable  means,  the 
promotion  of  intellectual,  scientific,  moral  and  agricultural  improvement.  The  pro- 
ceeds of  all  lands  that  have  been  or  hereafter  may  be  granted  by  the  United  States 
to  this  State,  for  the  support  of  schools,  which  shall  hereafter  be  sold  or  disposed 
of,  and  the  five  hundred  thousand  acres  of  land  granted  to  the  new  Suites, 
under  an  act  of  Congress,  distributing  the  proceeds  of  the  public  lands  among  the 
several  States  of  the  Union,  approved,  A.  D.  1841,  and  all  estates  of  deceased 
persons,  who  may  have  died  without  leaving  a  will,  or  heir ;  and  also  such  per 
cent,  as  may  be  granted  by  Congress  on  the  sale- of  lands  in  this  State,  shall  be 
and  remain  a  perpetual  fund,  the  interest  of  which,  together  with  all  the  rents  of 
the  unsold  lands,  and  such  other  means  as  the  General  Assembly  may  provide, 
shall  be  inviolably  appropriated  to  the  support,  of  common  schools  throughout  the 
State. 

SEC  III.  The  Genera!  Assembly  shall  provide  for  a  system  of  common  school?, 
by  which  a  school  shall  br  kept  up  and  supported  in  each  school  district,  at  lenst 
three  months  in  every  year;  a;id  any  school  district  neglecting  to  keep  up  and 
support  su?h  a  school  m-iy  be  deprived  of  its  proportion  of  the  inten  81  of  t'.ie 
pub'.ic  fund  during  such  neglect. 

S.cc.  IV.  The  money  which  shall  be  paid  by  persons  as  an  equivalent  for  exemp- 
ti  >n  fro  n  military  duf  ,  and  the  clear  proceeds  of  all  fines  collected  in  the  several 
counties  for  any  breach  of  the  penal  laws,  shall  be  exclusively  applied,  in  the 


464  IOWA. 

several  counties  in  which  such  money  is  paid  or  fine  collected,  among  the  several 
school  districts  of  said  counties,  in  the  proportion  to  the  number  of  inhabitants  in 
such  districts,  to  the  support  of  common  schools,  or  the  establishment  of  libiaries, 
as  the  General  Assembly  shall,  from  time  to  time,  provide  by  law. 

SEC.  V.  The  General  Assembly  shall  take  measures  for  the  protection,  improve- 
ment, or  other  disposition  of  such  lands  as  have  been  or  may  hereafter  be  reserved 
or  granted  by  the  United  States,  or  any  person  or  persons,  to  this  State,  for  the 
use  of  a  University ;  and  the  funds  accruing  from  the  rents  or  sale  of  such  lands, 
or  from  any  other  source,  for  the  purpose  aforesaid,  shall  be  and  remain  a  perma- 
nent fund,  the  interest  of  which  shall  be  applied  to  the  support  of  said  University, 
with  such  branches  as  the  public  convenience  may  hereafter  demand,  for  the  pro- 
motion of  literature,  the  arts  and  sciences,  as  may  be  authorized  by  the  terms  of 
such  grant.  And  it  shall  be  the  duty  of  the  General  Assembly,  as  soon  as  may  be, 
to  provide  effectual  means  for  the  improvement  and  permanent  security  of  the 
funds  of  said  University. 

ARTICLE  XI. 

SECTION  I.  If  at  any  time,  the  General  Assembly  shall  think  it  necessary  to 
revise  or  amend  this  Constitution,  they  shall  provide  for  a  vote  of  the  people  for  or 
against  a  Convention,  at  the  next  ensuing  election  for  members  of  the  General 
Assembly.  In  case  a  majoiity  of  the  people  vote  in  favor  of  a  Convention,  said 
General  Assembly  shall  provide  for  an  election  of  Delegates  to  a  Convention,  to  be 
held  within  six  months  after  the  vote  of  the  people  in  favor  thereof. 

ARTICLE  XII. 

SECTION  I.  The  jurisdiction  of  Justices  of  the  Peace  shall  extend  to  all  civil 
cases,  (except  cases  in  chancery  and  cases  where  the  question  of  title  to  any  real 
estate  may  arise,)  where  the  amount  in  controversy  does  not  exceed  one  hundred 
dollars,  and  by  the.  consent  of  parties  may  be  extended  to  any  amount  not  exceeding 
five  hundred  dollars. 

SEC.  II.  No  new  county  shall  be  laid  off  hereafter,  nor  old  county  reduced,  to 
less  contents  than  four  hundred  and  thirty-two  square  miles. 

SEC.  III.  The  General  Assembly  shall  not  locate  any  of  the  public  lands,  which 
have  been  or  may  be  granted  by  Congress  to  this  State,  and  the  location  of  which 
may  be  given  to  the  General  Assembly,  upon  lands  actually  settled,  without  the 
consent  of  the  occupant.  The  extent  of  the  claim  of  such  occupant  so  exempted 
shall  not  exceed  three  hundred  and  twenty  acres. 

Done  in  Convention,  at  Iowa  City,  on  the  18th  day  of  May,  in  the  year  of  our 
Lord,  one  thousand  eight  hundred  and  forty-six,  and  of  the  Independence  of  the 
United  States  of  America  the  seventieth. 


ERRATA.  465 


ERRATA. 


For  "  orthographical"  in  twenty-eighth  line,  of  page  twenty-six, "  etymological." 

For  "  Sir"  in  twenty-first  line,  thirty-third  page,  read  "  Com." 

For  "  Acadie"  in  sixth  line,  page  one  hundred  and  twenty-nine.  "  Acadia." 

For  ''an'"  in  seventeenth  line,  page  one  hundred  and  twenty-three,  "is" 

For  "  Colonial"  in  seventh  line,  page  one  hundred  and  thirty-one,  "manorial." 

For  "  buffalos"  in  second  line,  page  two  hundred  and  thirty-seven,  "  buffaloes" 

For  "ports"  in  twenty-fourth  line,  page  two  hundred  and  thirty-eight,  "posts." 

For  "  State"  in  second  line,  page  three  hundred  and  thirty-five,  "  Territory." 


GENERAL  INDEX, 


ACKNOWLEDGMENT  of  Deeds  in  New-York 89 

of  Deeds  in  Ohio 166 

of  Deeds  in  Ind  iana 202 

of  Deeds   in  Illinois 258 

of  Deeds  in  Michigan 307 

of.  Deeds  in  Wisconsin 359 

of  Deeds  in  Iowa 375 

ACTIONS,  Limitation  of  in  New-York 1 22 

Limitation  of   in  Ohio 185 

Limitation  of  in  Indiana 230 

Limitation  of  in  Illinois 284 

Limitation  of  in  Michigan ." 331 

Limitations  in  Wisconsin 371 

Limitations  of   in  Iowa 375 

ANNEXATION  of  the  Indian  Land's  to  the  Dukes  Grant 134 

AUDITORS  of  Counties  in  Ohio 177 

of  Counties  in  Indiana N. 223 

of  Counties  in  Illinois 275 

AUTHENTICATION  of  Certificates  of  Acknowledgment  for  record 

in  New-York 99 

of  Certificates  of  Acknowledgment  for  record  in  Ohio....  168 

of  Certificates  of  Acknowledgment  for  record  in  Indiana..  208 

of  Certificates  of  Acknowledgment  for  record  in  Illinois.. .  259 

of  Certificates  of  Acknowledgment  for  record  in  Michigan . .  310 

of  Certificates  of  Acknowledgment  for  reco:d  in  Wisconsin  360 

of  Certificates  of  Acknowledgment  for  record  in  Iowa....  375 

BRITAIN  GREAT,  Title  of  to  New-Yo.k 53 

Title  of  to  the  States  northwest  of  Ohio 132 

Relinquishment  of  Title  by  Treaty  by 59 

BRITISH  Claims  to  Territory  north  of  the  river  Ohio 188 

CHARTER  to  Virginia,  Connecticut  and  Massachusetts 133 

CAPITULATION  of  New- York 53 

of  the  Canadian  Possessions * 132 


468  INDEX. 

CANADA,  Territorial  Possession  of 129 

Law  of  in  the  Northwestern  Territory 131 

CESSION,  of  Domain  invited  by  Congress 137 

by  New-York  to  United  States 137 

by  Virginia  to  United  States 140 

by  Massachusetts  to  United  States 144 

by  Connecticut  to  United  States 145 

by  the  Six  Nations 61 

by  the  Hurons,  Delawares  and  other  Tribes 147 

CHARLES  II,  of  Grant  of  to  James,  Duke  of  York 57 

CHARTER  of  Virginia 133 

of  Connecticut 133 

of  Massachusetts • 144 

COLLECTORS  of  Taxes  in  New-York 118 

of  Taxes  in  Ohio 177 

of  Taxes  in  Indiana 223 

of  Taxes  in  Illinois 278 

of  Taxes  in  Michigan 325 

of  Taxes  iri  Wisconsin 365 

of  Taxes  in  Iowa 375 

CUSTOM  of  Paris,  the  law  Northwest  of  the  Ohio 131 

DEEDS,  Execution  of  in  New-York 83 

Execution  of  in  Ohio 162 

Execution  of  in  Indiana 200 

Execution  of  in  Illinois 256 

Execution  of  in  Michigan 300 

Execution  of  in  Wisconsin 357 

Execution  of  in  Iowa 375 

Attestation  of  in  New- York 85 

Attestation  of  in  Ohio 163 

Attestation  of  in  Indiana 200 

Attestation  of  in  Illinois 257 

Attestation  of  in  Michigan 302 

Attestation  of  in  Wisconsin 358 

Attestation  of  in  Iowa 375 

Acknowledgment  of  in  New- York 89 

Acknowledgment  of  in  Ohio 166 

Acknowledgment  of  in  Indiana 202 

Acknowledgment  of  in  Illinois 258 

Acknowledgment  of  in  Michigan 307 


INDEX.  469 

DEEDS,  Attestation  of  in  Wisconsin 359 

Attestation  of  in  Iowa 375 

Recording  of  in  New- York 95 

Recording  of  in  Ohio 168 

Recording  of  in  Indiana 206 

Recording  of  in  Illinois 262 

Recording  of  in  Michigan 311 

Recording  of  in  Wisconsin 360 

Recording  of  in  Iowa 375 

DESCENTS,  Regulations  concerning  in  New-York 114 

Regulations  concerning  in  Ohio 176 

Regulations  concerning  in  Indiana 214 

Regulations  concerning  in  Illinois 272 

Regulations  concerning  in  Michigan 322 

Regulations  concerning  in  Wisconsin 363 

Regulations  concerning  in  Iowa 375 

DEVISES,  of  Real  Estate  in  New-York 104 

of  Real  Estate  in  Ohio 170 

of  Real  Estate  in  Indiana 209 

of  Real  Estate  in  Illinois 265 

of  Real  Estate  in  Michigan 315 

of  Real  Estate  in  Wisconsin 361 

of  Real  Estate  in  Iowa 375 

DISCOVERY  the  source  of  Title  to  Lands 25 

DISTRICTS,  for  Recording  in  New-York 102 

for  Recording  in  Ohio 169 

for  Recording  in  Indiana 208 

for  Recording  in  Illinois 264 

for  Recording  in  Michigan 314 

for  Recording  in  Wisconsin 361 

ESTATES  in  Land,  in  New-York, 79 

in  Land,  in  Ohio 161 

in  Land,  in  Indiana 197 

in  Land,  in  Illinois, 249 

in  Land,  in  Michigan, 299 

in  Land,  in  Wisconsin 355 

EXECUTION  of  Deeds  in  New-York, 83 

of  Wills  in  New-York, 104 

of  Deeds  in  Ohio 162 

of  Wills  in  Ohio,..  .  170 


470  INDEX. 

EXECUTION  of  Deeds  in  Indiana, 200 

of  Wills  in  Indiana, 209 

of  Deeds  in  Illinois, 256 

of  Wills  in  Illinois, 265 

of  Deeds  in  Michigan, 300 

of  Wills  in  Michigan 315 

of  Deeds  in  Wisconsin, 357 

of  Wills  in  Wisconsin 361 

of  Deeds  in  Iowa, 375 

of  Wills  in  lo  vva, 375 

EXEMPTION  Law,  concerning,  in  New- York, 123 

Law,  concerning,  in  Ohio, 183 

Law,  concerning,  in  Indiana, 231 

Law,  concerning,  in  Illinois, 286 

Law,  concerning,  in  Michigan, 332 

Law,  concerning,  in  Wisconsin, 372 

EXPLORATION  of  New-York, 33 

of  the  Country  northwest  of  the  Ohio, 129 

FRANCE,  Law  of,  in  Northwestern  Territory 131 

FRENCH  Exploration  and  Settlements, 129 

GRANT  by  the  States  General  lo  Discoverers 35 

Special,  of  Privileges, 37 

of  Freedoms  and  Exemptions  by  Assembly  of  XIX. 41 

of  Charles  II.  to  the  Duke  of  York, 57 

of  Privileges  by  his  Royal  Highness, 58 

of  Right  of  Occupancy  by  the  Iroquois, 61 

of  Charters  to  Virginia,  Connecticut  and  Massachusetts,. . .  133 

of  New-York  to  United  Stales, 137 

of  Virginia  to  United  States, 140 

of  Massachusetts  to  United  States, 1 44 

of  Connecticut  to  United  States, 145 

of  the  Delawares,  Wyandots,  and  other  French  tribes 147 

GREAT  BRITAIN,  Title  of,  to  New-York, 53 

Title  of,  to  Country  northwest  of  Ohio, 1 32 

Charters  granted  by, 133 

Relinquishment  of  Jurisdiction, » 59 

ILLINOIS,  Source  of  Title  to  Lands  in 237 

Exploration  and  Settlement  of, 238 

Territory,  Erection  of, 239 

Act  for  Admission  of  as  a  State, 242 


INDEX.  471 

ILLINOIS,  Ordinance  of,  accepting  Proposals  of  Congress, 2-16 

Constitution  of 249 

Land  Titles  in, 249 

Execution  of  Deeds  and  Moitgages  in, 256 

Proof  and  Acknowledgment  of  Deeds  and  Mortgages  in,. .  258 

Recording  of  Dee^s  and  Mortgages  in, 262 

Wills  of  Real  Estate  in 265 

Statute  of  Descents  in, 272 

Levy  and  Collection  of  Taxes  in, 274 

Land  Tax  Forfeitures  and  Redemptions  in, 283 

Limitation  of  Real  Actions  in, 284 

Real  Estate  Exemptions  in, 286 

Interest  of  Money  and  Usury  in, 287 

INDIANA,  Source  of  Title  to  Lands  in, 187 

Exploration  and  Settlement  of,...- 188 

Territory,  Erection  of, 189 

Act  for  admission  of  as  a  State, 191 

Ordinance  of,  accepting  Proposals* of  Congress, 195 

Constitution  of, 196 

Land  Titles  in, 197 

Execution  of  Deeds  and  Mortgages  in, 200 

Proof  and  Acknowledgment  of  Deeds  and  Mortgages  in,..  202 

Recording  of  Deeds  and  Mortgages  in, 206 

Wills  of  Real  Estale  in, 209 

Statute  of  Descents  in, 215 

Levy  and  Collection  of  Taxes  in,.' 223 

Land  Tax  Forfeitures  and  Redemptions  in, 226 

Limitation  of  Real  Actions  in 230 

Real  Estate  Exemptions  in 231 

Interest  of  Money  and  Usury  in 234 

INTEREST  of  Money  in  New-York, 124 

of  Money  in  Ohio 187 

of  Money  in  Indiana, 234 

of  Money  in  Illinois, 287 

of  Money  in  Michigan, , 334 

of  Money  in  Wisconsin „...  373 

of  Money  in  Iowa, 376 

INDIAN  Cessions  of  Land  in  New-York, 61 

Cessions  of  Land  northwest  of  the  Ohio, 147 

IOWA,  Source  of  Tale  to  Lands  in, .                                               .  374 


472  INDEX. 

IOWA,  Cession  of  to  France, 374 

Purchase  of  from  France,  by  United  States, 375 

Erected  a  Territory  with  Wisconsin, 375 

Admission  of,  as  a  State, 375 

Constitution  of 375 

Statutes  of,  framed  after  those  of  Michigan, 375 

Conveyances,  Taxes  and  Redemptions  in, 376 

Interest  of  Money,  and  Usury  in, 376 

KENTUCKY,  included  in  the  Charter  of  Virginia, 133 

LAND  TITLES,  Source  of,  in  New-York, 25 

Source  of,  in  Ohio, 1 27 

Source  of,  in  Indiana, 187 

Source  of,  in  Illinois, 237 

Source  of,  in  Michigan, 289 

Source  of,  in  Wisconsin, 335 

Source  of,  in  Iowa, 374 

LAND  TAXES,  the  Levy  an^  Collection  of  in  New-York 117 

Sales  for,  and  Redemptions  in  New-York, 119 

Levy  and  Collection  of,  in  Ohio, 176 

Sales  for  and  Redemptions  in  Ohio, 181 

Levy  and  Collection  of,  in  Indiana, 223 

Sales  for,  and  Redemptions  in  Indiana, 226 

Levy  and  Collection  of,  in  Illinois, 274 

Sales  for,  and  Redemptions  in  Illinois, 382 

Levy  and  Collection  of,  in  Michigan, 324 

Sales  for,  and  Redemptions  in  Michigan, 328 

Levy  and  Collection  of,  in  Wisconsin, 363 

Sales  for,  and  Redemptions  in  Wisconsin, 370 

Levy  and  Collection  of,  in  Iowa, 375 

Sales  for,  and  Redemptions,  in  Iowa, 375 

LIMITATIONS,  Statute  of,  in  New-York, 122 

Statute  of,  in  Ohio, 185 

Statute  of,  in  Indiana, 230 

Statute  of,  in  Illinois, 284 

Statute  of,  in  Michigan, 331 

Statute  of,  in  Wisconsin, 371 

LOUISIANA,  Purchase  of, 374 

MASSACHUSETTS,  Charter  of, 134 

Cession  of  Domain  by, 1 44 

MICHIGAN,  Source  of  Title  to  Lands  in, 289 


INDEX.  473 

MICHIGAN,  Exploration  and  Settlement  of, 290 

Erection  of  Territory  of, 391 

Act  for  Admission  of,  as  a  State, 293 

Constitution  of, I  298 

Land  Titles  in, 298 

Execution  of  Deeds  and  Mortgages  in, 300 

Proof  and  Acknowledgment  of  Deeds  and  Mortgages  in,... .   307 

Recording  of  Deeds  and  Mortgages  in 311 

Wills  of  Real  Estate  in 315 

Statute  of  Descents  in, 322 

Levy  and  Collection  of  Taxes  in, 324 

Land  Tax  Forfeitures  and  Redemptions  in, 328 

Limitation  of  Real  Actions  in 331 

Real  Estate  Exemptions  in, 332 

Interest  of  Money  and  Usury  in 334 

MONEY,  Interest  of  in  New-York 124 

Interest  of  in  Ohio 186 

Interest  of  in  Indiana 234 

Interest  of  in  Illinois 287 

Interest  of  in  Michigan 234 

Interest  of  in  Wisconsin 373 

Interest  of  in  Iowa 376 

NEW- YORK,  Source  of  1'itle  to  Lands  in 25 

Proprietors  tof 28 

Settlement  by  the  Dutch 33 

Special  Grant  of  Privileges  by  the  States  Geneial  iu 37 

Grant  of  Freedoms  and  Exemptions  in  by  Assembly  of  XIX.     41 

The  Purchase  of  Patroonships  in 50 

Capitulation  of  to  the  English 53 

Grant  of  by  Charles  II.  to  James,  Duke  of  York 57 

Grant  of  Privileges  to  the  Inhabitants  of 58 

Transfer  of  Title  and  Jurisdiction  to  the  United  Stales....      59 

Cession  and  Giants  by  ihe  Native  Proprietors  of 61 

Reservations  and  Guaranties  of  the  Constitution  of 77 

Land  Titles  and  Estates  in 79 

Execution  of  Deeds  and   Mortgages  in 83 

Proof  and  Acknowledg  meni  Deeds  and  Mortgages 89 

Recording  of  Deeds  and  effect  thereof  in 95 

Execution,  and    Probate  of  Wills  of  Real  Estate  in 104 

Statutes  of  Descents  in 114 

2i* 


474  INDEX. 

NEW- YORK,  Levy  and  Collection  of  Land  Taxes  in 117 

Land  Tax  Forfeiture*  and  Redemptions  in 119 

Limitation  of  Actions  for  Recovery  of  Real  Estate 122 

Real  Estate  Exemptions  in 1 23 

Interest  of  Money  and  Usury  in 124 

Cession  by  to  the  United  States 137 

OHIO,  Source  of  Title  to  Lands  in 127 

Exploration  and  Settlement  of  by  the  French 132 

Capitulation  of  to  the  English 133 

Cessions  to  by  Massachusetts,  Connecticut,  New-York  and 

Virginia 137 

Cession  to  by  the  Native  Proprietors 147 

Erection  of  from  the  Northwestern  Territory 156 

Division  of 160 

Constitution  of 161 

Land  Titles  generally  in 161 

Executions  of  Deeds  in 163 

Proof  and  Acknowledgment  of  Deeds  in 166 

Recording  of  Deeds  in 168 

Wills  of  Real  Estate  in 170 

Probate  of  Wills  of  Real  Estate  in 173 

Statute  of  Descents  in 176 

Land  Taxes  in 176 

Land  Tax  Forfeitures  and  Redemptions  in 181 

Limitations   in 185 

Interest  of  Money  and  Usury  in ".....   186 

PATROONSHIPS,  Grants  of  in  New- York 41 

PATROONS,  Purchases  by so 

Specimen  Grant  to 52 

PROOF,  of  the  Execution  of  Conveyances  in  New-York 89 

of  the  Executions  of  Wills  in  New- York Ill 

of  the  Execution  of  Conveyances  in  Ohio 1(56 

of  the  Execution  of  Wills  in  Ohio 173 

of  the  Execution  of  Conveyances  in  Indiana 202 

of  the  Execution  of  Wills  in  Indiana. 211 

of  the  Execution  of  Conveyances  in  Illinois 258 

of  the  Execution  of  Wills  in  Illinois 26.9 

of   the  Execution  of  Conveyances  in  Michigan 307 

of  the  Execution  of  Wills  in  Michigan 321 

of  the  Execution  of  Conveyances  in  Wisconsin 359 

of  the  Execution  of  Wills  in  Wisconsin ......,.,,.   363 


INDEX.  475 

PRIORITY,  of  Conveyances  in  New- York 95 

of  Conveyances  in  Ohio 168 

of  Conveyances  in  Indiana 206 

of  Conveyances  in  Illinois 262 

of  Conveyances  in  Michigan 311 

of  Conveyances  in   Wisconsin 360 

PROBATE,  of  Wills  of  Real  Estate  in  New- York Ill 

of  Wills  of  Real  Estate  in  Ohio :   173 

of  Wills  of  Real  Estate  in  Indiana 211 

of  Wills  of  Real  Estate  in  Illinois 269 

of  Wills  of  Real   Estate  in  Michigan 321 

of  Wills  of  Real  Estate  in   Wisconsin 363 

QUARTER    SALES 53 

RECORDING,  of  Conveyances  in   New-York 95 

of  Wills  in  New-York Ill 

of  Conveyances  in  Ohio 168 

of  Wills  in  Ohio 173 

of  Conveyances  in  Indiana 206 

of  Wills  in  Indiana 211 

of  Conveyances  in  Illinois 262 

of  Wills  in  Illinois 269 

of  Conveyances  in    Michigan 311 

of  Wills  in  Michigan 321 

of  Conveyances  in  Wisconsin 360 

of  Wills  in  Wisconsin 363 

RECORDING  DISTRICTS,  in  New- York 102 

in  Ohio 16f) 

in  Indiana 208 

in  Illinois 264 

in  Michigan 314 

in  Wisconsin 361 

REDEMPTIONS,  of  Land  sold  for  Taxes  in  New-York 119 

of  Land  sold  for  Taxes  in  Ohio 181 

of  Land  sold  for  Taxes  in  Indiana 236 

of  Land  sold  for  Taxes  in  Illinois 283 

of  Land  sold  for  Taxes  in  Michigan 328 

of  Land  sold  for  Taxes  in  Wisconsin 371 

SALE  of  Land  for  Non-payment  of  Taxes  in  New-York 119 

of  Land  for  Non-payment  of  Taxes  in  Ohio 180 

of  Land  for  Non-pay  mentjof  Taxes  in  Indiana 242 


476  INDEX. 

SALE  of  Land  for  non-payment  of  Taxes  in  Illinois 280 

of  Land  for  non-payment  of  Taxes  in  Michigan 327 

of  Land  for  non-payment  of  taxes  in  Wisconsin 366 

TAXES  in  New-York,  how  levied  and  collected, 117 

Effect  of  Non-payment  of, 119 

Sale  of  Lands  for,  delinquent, 119 

Land  sold  for,  how  redeemed,  when,  and  by  whom, 120 

in  Ohio,  how  levied  and  collected, 176 

Effect  of  Non-payment  of, 180 

Sale  of  Lands  for,  delinquent, 181 

Lands  sold  for,  how  redeemed,  when,  and  by  whom, 182 

in  Indiana,  how  levied  and  collected, 223 

Effect  of  Non-payment  of, 224 

Sale  of  Lands  for,  delinquent 226 

Land  sold  for,  how  redeemed,  when,  and  by  whom, 227 

in  Illinois,  how  levied  and  collected 274 

Effect  of  Non-payment, 279 

Sale  of  Lands  for,  delinquent, 281 

Land  sold  for,  how  redeemed,  when,  and  by  whom, 283 

in  Michigan,  how  levied  and  collected 324 

Effect  of  Non-payment  of, 326 

Sale  of  Lands  for,  delinquent, 327 

Land  sold  for,  how  redeemed,  when,  and  by  whom, 328 

in  Wisconsin,  how  levied  and  collected, 363 

Effect  of  Non-payment  of, 366 

Sale  of  Lands  for,  delinquent, 369 

Land  sold  for,  how  redeemed,  when,  and  by  whom 370 

in  Iowa,  how  levied  and  collected, 375 

Effect  of  Non-payment  of, 376 

Sale  of  Lands  for,  delinquent, 376 

Land  sold  for,  how  redeemed,  when  and  by  whom 376 

VIRGINIA,  Charter  of, 133 

Cession  by, 140 

WISCONSIN,  Source  of  Title  to  lands  in, 335 

Native  Proprietors  of, 336 

Exploration  and  Settlement  of, 347 

Cession  of  to  the  United  [States  by  Virginia, 337 

Erection  of  the  Territory  of, 338 

Territorial  Organization  of, 344 

Act  of,  providing  for  her  Admission  into  the  Union, 349 


INDEX.  477 

WISCONSIN,  Notes  of  Acts  affecting  boundaries  of, 349 

Rejected  Constitution  of, 354 

Land  Titles  generally  in, 355 

Execution  of  Conveyances  in, 357 

Proof  and  Acknowledgment  of  Conveyances  in, 359 

Recording  of  Conveyai  ces  in, 360 

Recording  Districts  in,.' 361 

Execution  of  Wills  of  Real  Estate  in 362 

Probate  and  Recording  of  Wills  of  Real  Estate  in, 363 

Levy  and  Collection  of  Taxes  in, 364 

Sale  of  Land  for  delinquent  Taxes  in, 369 

Redemption  of  Land  sold  for  Taxes  in, 370 

Limitation  of  Actions  in, 371 

Real  Estate  Exemptions  in, 372 

Interest  of  Money,  and  Usury  in, 373 


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Ta\  Inr's  Landlord  and  Tenant.     Wright's  Executor's  Guide.     Kirtland's  Surrogate. 

:    \\ilU.     ]/,  .     Mitford's  Chancery  Pleadings. 

Biydenburgh  tn\  I'sun-.     Revised  Statutes  of  New-York,   3vols. 

:!  StaiiU'-s  of  New-York.     Session  Laws  each  year.     Adams  on  Ejectment. 
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Angell  vfc  Ames  on  Corporatioas.     Angoll  on  Water  Courses.     Hilliard  on  Sales, 
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